Thao v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-1280V

Filed: July 2, 2025

Special Master Horner

EVE Y. THAO,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Richard H. Moeller, Moore, Corbett, Moeller & Meis, LLP, Sioux City, IA, for petitioner.

Ryan Nelson, U.S. Department of Justice, Washington, DC, for respondent.

DECISION1

On April 23, 2021, petitioner filed a petition under the National Childhood Vaccine

Injury Act, 42 U.S.C. § 300aa, et seq. (2012) (“Vaccine Act”),2 alleging that she suffered

a right shoulder injury as a result of a hepatitis B vaccination she received on July 13,

2020. (ECF No. 1.) For the reasons set forth below, I conclude that petitioner is not

entitled to compensation.

I. Applicable Statutory Scheme

Under the National Vaccine Injury Compensation Program, compensation

awards are made to individuals who have suffered injuries after receiving vaccines. In

general, to gain an award, a petitioner must make a number of factual demonstrations,

including showing that an individual received a vaccination covered by the statute;

1

Because this document 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 document 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

Within this decision, all citations to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C.

§ 300aa-10, et seq.

1

received it in the United States; suffered a serious, long-standing injury; and has

received no previous award or settlement on account of the injury. Finally – and the key

question in most cases under the Program – the petitioner must also establish a causal

link between the vaccination and the injury. In some cases, the petitioner may simply

demonstrate the occurrence of what has been called a “Table Injury.” That is, it may be

shown that the vaccine recipient suffered an injury of the type enumerated in the

“Vaccine Injury Table,” corresponding to the vaccination in question, within an

applicable time period following the vaccination also specified in the Table. If so, the

Table Injury is presumed to have been caused by the vaccination, and the petitioner is

automatically entitled to compensation, unless it is affirmatively shown that the injury

was caused by some factor other than the vaccination. § 300aa-13(a)(1)(A);

§ 300aa-11(c)(1)(C)(i); § 300aa-14(a); § 300aa-13(a)(1)(B).

As relevant here, the Vaccine Injury Table lists Shoulder Injury Related to

Vaccine Administration (“SIRVA”) as a compensable injury if it occurs within ≤48 hours

of administration of a flu vaccine. § 300aa-14(a), amended by 42 C.F.R. § 100.3. Table

Injury cases are guided by a statutory “Qualifications and aids in interpretation” (“QAI”),

which provide more detailed explanation of what should be considered when

determining whether a petitioner has actually suffered an injury listed on the Vaccine

Injury Table. § 300aa-14(a). To be considered a Table SIRVA petitioner must show

that his/her injury fits within the following definition:

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 . . . 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

2

(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, and any other

neuropathy).

42 C.F.R. § 100.3(c)(10).

Alternatively, if no injury falling within the Table can be shown, a petitioner could

still demonstrate entitlement to an award by instead showing that the vaccine recipient’s

injury or death was caused-in-fact by the vaccination in question. § 300aa-13(a)(1)(A);

§ 300aa-11(c)(1)(C)(ii). In particular, a petitioner must demonstrate that the vaccine

was “not only [the] but-for cause of the injury but also a substantial factor in bringing

about the injury.” Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321-22

(Fed. Cir. 2010) (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344,

1352-53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352,

1355 (Fed. Cir. 2006). To successfully demonstrate causation-in-fact, petitioner bears a

burden to show: (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 proximate temporal relationship between vaccination

and injury. Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.

2005).

For both Table and Non-Table claims, Vaccine Program petitioners bear a

“preponderance of the evidence” burden of proof. § 300aa-13(1)(a). That is, a petitioner

must offer evidence that leads the “trier of fact to believe that the existence of a fact is

more probable than its nonexistence before [he] may find in favor of the party who has

the burden to persuade the judge of the fact’s existence.” Moberly, 592 F.3d at 1322

n.2 (alternation in original); see also Snowbank Enters., Inc. v. United States, 6 Cl. Ct.

476, 486 (1984) (explaining that mere conjecture or speculation is insufficient under a

preponderance standard). Proof of medical certainty is not required. Bunting v. Sec’y

of Health & Human Servs., 931 F.2d 867, 873 (Fed. Cir. 1991). However, a petitioner

may not receive a Vaccine Program award based solely on her assertions; rather, the

petition must be supported by either medical records or by the opinion of a competent

physician. § 300aa-13(a)(1).

Cases in the Vaccine Program are assigned to special masters who are

responsible for “conducting all proceedings, including taking such evidence as may be

appropriate, making the requisite findings of fact and conclusions of law, preparing a

decision, and determining the amount of compensation, if any, to be awarded.” Vaccine

Rule 3(b)(1). Special masters must ensure each party has had a “full and fair

opportunity” to develop the record. Vaccine Rule 3(b)(2). However, special masters are

empowered to determine the format for taking evidence based on the circumstances of

each case. Vaccine Rule 8(a); Vaccine Rule 8(d). Special masters are not bound by

common law or statutory rules of evidence but must consider all relevant and reliable

evidence in keeping with fundamental fairness to both parties. Vaccine Rule 8(b)(1).

The special master is required to consider “all [] relevant medical and scientific evidence

3

contained in the record,” including “any diagnosis, conclusion, medical judgment, or

autopsy or coroner’s report which is contained in the record regarding the nature,

causation, and aggravation of the petitioner’s illness, disability, injury, condition, or

death,” as well as the “results of any diagnostic or evaluative test which are contained in

the record and the summaries and conclusions.” § 300aa-13(b)(1)(A). The special

master is required to consider all the relevant evidence of record, draw plausible

inferences, and articulate a rational basis for the decision. Winkler v. Sec’y of Health &

Human Servs., 88 F.4th 958, 963 (Fed. Cir. 2023) (citing Hines ex rel. Sevier v. Sec’y of

Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991)).

II. Procedural History

Petitioner filed an affidavit and medical records between April of 2021 and April

of 2023. (ECF Nos. 1, 6-7, 19, 24, 29, 31, 35, 37, 42; Exs. 1-13.) The case was initially

assigned to the Special Processing Unit (“SPU”) based on the allegations of the petition.

(ECF Nos. 10-11.) On September 21, 2022, respondent filed his Rule 4(c) Report

recommending against compensation. (ECF No. 39.) Respondent argued that, rather

than experiencing either a Table SIRVA or a shoulder injury caused-in-fact by her

vaccination, petitioner experienced a continuation of a pre-existing injury that she had

sustained while serving in the army. (Id. at 10-11.) Thereafter, in May of 2023, the

case was reassigned to the undersigned. (ECF Nos. 45-46.)

After the case was reassigned, I issued a Rule 5 Order. (ECF No. 47.) I advised

that, based on respondent’s understanding of the medical records, my preliminary view

was that petitioner may not have sufficient medical basis for distinguishing her pre- and

post- vaccination condition. (Id. at 2.) I cautioned that “merely placing onset of

shoulder pain within 48 hours of vaccination will not suffice, without more, if [petitioner’s]

overall medical history is confounding.” (Id.) Petitioner subsequently filed a

memorandum of facts responding to respondent’s recitation of the medical records

(ECF No. 61.), as well as additional evidence, including a personal statement (Ex. 14),3

a statement by her mother (Ex. 15), updated medical records (Ex. 16), Facebook

messages (Ex. 17), imaging records (Exs. 18-19), and an expert report by Marko Bodor,

M.D. (Ex. 20-26).4 (ECF Nos. 49, 51, 53, 58, 62, 65, 67, 70.) Respondent filed a

responsive expert report by Paul J. Cagle, M.D. (ECF No. 71; Exs. A-B.)

Petitioner then requested that entitlement be resolved via a motion for a ruling on

the written record. (ECF No. 73.) Petitioner filed her motion in July of 2024, and it was

fully briefed in August of 2024. (ECF Nos. 75-76, 79.) I have determined that the

parties have had a full and fair opportunity to present their cases and that it is

appropriate to resolve entitlement on the existing record. See Vaccine Rule 8(d);

3

Petitioner initially filed her personal statement on July 21, 2023. (ECF No. 49.) However, the same day,

petitioner filed a corrected version of her personal statement as Exhibit 14. (ECF No. 51.) All citations to

Exhibit 14 refer to the corrected version at ECF No. 51.

4

Petitioner initially filed Dr. Bodor’s expert report as Exhibit 20 on December 15, 2023. (ECF No. 67.)

However, on February 28, 2024, petitioner filed an amended version of Dr. Bodor’s report as Exhibit 20.

(ECF No. 70.) All references to Exhibit 20 refer to the amended version at ECF No. 70.

4

Vaccine Rule 3(b)(2); see also Kreizenbeck v. Sec’y of Health & Human Servs., 945

F.3d 1362, 1366 (Fed. Cir. 2020) (noting that “special masters must determine that the

record is comprehensive and fully developed before ruling on the record”). Accordingly,

petitioner’s motion is ripe for resolution.

III. Factual History

Prior to the vaccination at issue, petitioner was injured while serving in the U.S.

army in Afghanistan. Specifically, on March 22, 2011, petitioner was injured in a mortar

blast. (Ex. 8, pp. 297-99, 321-22.) While still recovering, she then suffered a head

injury on March 31, 2011, when she was hit in the back of the head by a forklift. (Id. at

288-91.) The forklift injury primarily affected the right side of her neck. (Id. at 283-84.)

As a result of these events, petitioner suffered a mild traumatic brain injury, post-

concussion syndrome, headaches, and muscle spasms in the neck. (Id. at 282-84, 288-

89, 293, 295, 297.) While still in Afghanistan, petitioner subsequently presented for a

physical therapy evaluation on November 7, 2011, with complaints of muscle spasm

and backache. (Id. at 276.) Petitioner reported experiencing neck and right shoulder

pain. (Id.) She indicated that her prior symptoms from her forklift injury had resolved,

but that she was again experiencing similar symptoms. (Id.) Petitioner was unsure

whether her current pain and symptoms were related to her prior forklift injury. (Id.)

She was assessed as having right upper trapezius and periscapular muscle spasms.

(Id. at 277.)

After she returned to the U.S., petitioner presented for follow up care for right

shoulder pain on February 9, 2012. (Ex. 8, pp. 268-71.) She reported that she had

been experiencing shoulder pain since March of 2011. (Id. at 269.) Petitioner

described her prior forklift accident and explained that her pain “started in her neck then

ra[d]iated down to the shoulder.” (Id.) Petitioner indicated that her pain was helped by

stretching, but made worse by lifting, pressure, or long periods of sitting. (Id.) On

physical exam, petitioner’s trapezius showed no pain on palpation and no spasm and

there was “no shoulder joint involvement.” (Id. at 270.) However, she had pain over her

right trapezius with cervical spinal rotation and flexion. (Id.) Her physician was unclear

as to whether her intermittent trapezius spasms were related to her prior injury. (Id.)

She was referred for further physical therapy. (Id.)

At her physical therapy reevaluation in March of 2012, petitioner reported

consistent complaints of pain with active cervical range of motion, despite no significant

limitations or asymmetric range of motion. (Ex. 8, pp. 252-53.) In the course of physical

therapy, she was assessed as having cervicalgia. (Id. at 242.) On May 18, 2012,

petitioner had an MRI study of both her right shoulder and cervical spine due to her

“constant neck pain and headaches.” (Id. at 66.) The right shoulder study was normal,

and the cervical spine study showed only minimal central disc bulging at C4-C5 and C5-

C6. (Id. at 66-67.) Later that month, however, petitioner began experiencing

numbness, tingling, and pain from her right shoulder down to her right hand. (Id. at

186.) She also developed a “visible” tremor in her right hand. (Id. at 186-87.) A follow

up EMG of the right upper extremity was normal. (Id. at 176.)

5

On June 4, 2012, petitioner had a physical examination in connection with her

separation from the army. (Ex. 8, pp. 168-71.) Although her assessment included

“upper back pain (between shoulder blades),” the physical exam was normal and she

was released without limitations. (Id. at 170.) However, petitioner continued to seek

treatment from the VA for her right shoulder and neck pain from 2013 through 2016.

(See generally ECF No. 19-1 (Ex. 6).)5 Initially, petitioner had full range of motion and

she was negative for any right shoulder impingement. (ECF No. 19-1, pp. 644, 646.)

However, beginning in January of 2013, petitioner reported losing range of motion and

her physical exam confirmed reduced range of motion in her right shoulder as well as a

positive Hawkins Impingement test and a positive lift off subscapularis test. (Id. at 399,

459-60, 468-69.) She also had tenderness to palpation at the biceps tendon and

reported mechanism symptoms, such as clicking or catching. (Id. at 468-469.) At a

follow up in December of 2013, petitioner evidenced weakness in her right deltoid upon

physical examination. (Id. at 483-84.) Petitioner underwent a second EMG which was

normal and showed no electrodiagnostic evidence of right cervical radiculopathy,

brachial plexopathy, or peripheral neuropathy. (Id. at 384-86.)

On August 18, 2014, petitioner sought veteran’s disability benefits relative to

multiple injuries, including right shoulder strain and cervical neck strain. (Ex. 9, pp. 84-

85.) She was released from assignment and duty for a conflict-related physical

disability as of June 10, 2015. (Id. at 87.) Petitioner did not seek treatment for these

issues between August of 2016 and September of 2017, but resumed physical therapy

for various musculoskeletal complaints, including her right shoulder, in October of 2017.

(Ex. 2, pp. 122-23, 127.) She continued physical therapy until April of 2018. (Id. at

368.) Thereafter, petitioner pursued acupuncture treatment for her shoulder and other

issues from August of 2018 through December of 2019. (Ex. 3, pp. 9-26, 38.)

In her second affidavit, petitioner described her pre-vaccination condition as

follows:

I had stiffness, numbing, tingling, sharp pains that ran from the back of my

shoulder blade all the way down the right arm. The pain typically started in

back, under and around the right shoulder blade, and often sent the

numbing, tingling, tenderness, and sharp pains down my arm to the pinky.

In addition to the pain and symptoms I experienced from my service injuries,

I had weakness where I sometimes could not hold things like my weapon or

cell phone. It was also difficult to lift, extend, reach behind fully because I

would start feeling weakness and sharp pains at certain movements. I think

my range of motion was mostly limited due to the pain and symptoms I felt.

The inability to grip or hold things was due to the weakness and numbing

sensations I felt that radiated from the back of my shoulder to my fingers.

5

This exhibit is not bates stamped with exhibit page numbers. Therefore, this exhibit will be cited by its

ECF number and pin citation will be to the ECF pagination.

6

(Ex. 14, ¶¶ 4-5.)

Petitioner indicates that from 2012 through 2020 she “received back and forth

care from chiropractors, acupuncturists, and physical therapists” which “focused on

treating the pain, numbing, tingling, tenderness, weakness, shooting, burning and sharp

pains that I had.” (Ex. 14, ¶ 11.) However, petitioner avers that she “started to see

some improvement” “around 2019” and that from that point “most of the symptoms

resolved and what I experienced were sporadic sharp pains and numbing that ran down

the back of my right shoulder to the fingers.” (Id. at ¶¶ 12-13.)

However, petitioner sought a second referral for further acupuncture on July 9,

2020. (Ex. 2, pp. 88-89.) The reason for the request was “migraines, neck, right

shoulder, left hip, and 1b radiculopathies.” (Id. at 89.) She received the hepatitis B

vaccination at issue on July 13, 2020, between the time of her July 9, 2020 acupuncture

referral and her first acupuncture visit, which was on July 20, 2020. (Ex. 2, p. 202; Ex.

3, p. 38.) The vaccination was administered in her right deltoid. (Ex. 2, p. 202.)

Petitioner averred that “[i]mmediately after the nurse administered the vaccine, I

felt this weird bubbly feeling and stiffness in and around the injection site.” (Ex. 1, ¶ 5;

see also Ex. 14, ¶ 15.) Additionally, she “felt soreness and uncomfortable pain in my

right shoulder area, immediately after the vaccine was administered.” (Ex. 1, ¶ 5.) She

indicated that she reported these sensations to the administering nurse and was told it

was normal.6 (Ex. 14, ¶ 15.) She characterized this pain as feeling “like a bee sting.”

(Ex. 1, ¶ 5.) Later that day, petitioner complained of her shoulder pain to her partner,

who recommended she contact a doctor, and observed that she had pain with lifting and

difficulty sleeping that night. (Id. at ¶¶ 7-8; Ex. 14, ¶ 16.) Over subsequent days,

petitioner observed limited range of motion along with difficulty with lifting, reaching,

grabbling, and holding. (Ex. 1, ¶¶ 10-16; Ex. 14, ¶ 17.) However, she decided to wait to

seek treatment to see if it was normal post-vaccination pain as the nurse had indicated.

(Ex. 1, ¶ 14.)

Petitioner’s mother submitted a statement indicating that petitioner complained of

a “bubble and stinging feeling” from her vaccination a day or two after the fact, and that

two to three days after that she commented via Facebook messenger that she was

having difficulty clothing herself, showering, and sleeping. (Ex. 15.) Petitioner filed

some Facebook messenger screenshots of messages relating to her right shoulder.

(Ex. 17.) The earliest is dated August 9, 2020. (Id. at 2.) In it, petitioner states “I have

a feeling that when I got my Hep B vaccine in late June, it’s been causing a lot of

shoulder/arm pain in my right arm. I think it’s also causing my fatigue cause I can’t

sleep at night . . ..” (Id.)

6

Contrary to this account, petitioner’s vaccination record states that “[t]he patient was asked to stay in the

clinic for 15 min of observation following vaccination. Tolerated procedure well. Left with no new

complaints.” (Ex. 2, p. 202.)

7

Petitioner avers that her post-vaccination symptoms are different from her pre-

vaccination symptoms.7 (Ex. 14, ¶ 22.) She stresses that post-vaccination she

experienced pain mostly in the right shoulder joint and deltoid area and that she also

experienced a popping or cracking sensation. (Id.) Petitioner avers that “[b]efore the

vaccine shot, I attended acupuncture treatment for unrelated reasons. However,

starting July 20, 2020, I was now being seen for the constant right shoulder pain I was

experiencing in and near the injection site.” (Ex. 1, ¶ 17.)

Prior to contacting her primary care provider regarding her post-vaccination

shoulder pain, petitioner presented twice to her acupuncturist, on July 20, 2020, and

July 29, 2020. (Ex. 3, pp. 37-38.) The parties disagree as to the meaning of the

resulting notations. According to petitioner, the July 20 acupuncture record includes a

note of “B Sh” (meaning bilateral shoulder pain) that is crossed out in favor of a notation

of “R Sh p 2/10.” (ECF No. 61, p. 7 (discussing Ex. 3, p. 38).) Petitioner believes that

this indicates that, whereas petitioner had been pursuing acupuncture for bilateral

shoulder pain, her July 20 presentation was notable for significant symptoms related to

her right shoulder and only generalized discomfort in her left shoulder. (Id.) Petitioner

suggests this is further reinforced by the July 29 notation of 3/10 right shoulder pain and

“extreme tightness” in the right trapezius as well as infraspinatus and supraspinatus.

(Id. (discussing Ex. 3, p. 37).) Respondent does not dispute the fact of these notations

but does not find them to be indicative of any new or increased pain since vaccination

and further notes that there is no mention of the vaccination within these encounter

records. (ECF No. 39, pp. 4-5.)

On August 8, 2020, petitioner sent a message to her primary care provider

stating:

I got my second Hepatitis B shot a few weeks ago. I noticed some normal

pain at the site, but after a few days I started noticing some pain in the

shoulder and arm. It’s been a few weeks since the shot, I haven’t done

anything to injure it or overuse the shoulder. When sleeping on the shoulder

it’s more painful and there is a constant pain and discomfort all day. There’s

some limited range of motion due to pain.

(Ex. 2, p. 195.) Petitioner was advised that this was “not abnormal” and to continue

monitoring. (Id.)

7

In her second affidavit, petitioner states that “I have a log attached to this Affidavit to illustrate what I

experienced for months. I stopped keeping track at the end of 2020 because I got busy with work and

school.” (Ex. 14, ¶ 20.) Accompanying the affidavit are two pages first with the heading “Attachment to

Second Affidavit of Eve. Y. Thao” and then sub-headed “Hep B Vaccination Log – Post Vaccination.” (Ex.

14, pp. 7-8.) The log includes entries dated from July 13, 2020 through December 30, 2020, and

concludes with a notation that “I stopped keeping track of my injury because I started my Masters

program in Fall 2020 . . . .“ (Id.) Although petitioner specifies when she stopped keeping this log, she

does not indicate when she started to keep it. The attachment has a heading and notation that appear to

be specific to this litigation and nothing in the body of the attachment confirms it to be a

contemporaneously recorded log.

8

Thereafter, petitioner returned to acupuncture and had six sessions during

August and September. (Ex. 3, pp. 35-37.) During this period, petitioner reported

numbness and tingling of the right shoulder on two occasions and reported right

shoulder pain of between 3/10 and 5/10, but with no specific mention of her vaccination.

(Id.)

On October 5, 2020, petitioner contacted her primary care provider again,

reporting that “I still have pain in my right shoulder, and shoulder joint. There’s still

tenderness there and I cannot sleep on it at night. There is still pain that radiates to and

from the shoulder joint, when lifting it and exerting it . . . .“ (Ex. 2, p. 183.) Petitioner

was then seen by a nurse practitioner in office on October 9, 2020. (Id. at 181.) The

record of her physical exam was limited to noting “right deltoid; negative erythema,

edema.” (Id. at 182.) The assessment was status post vaccine injection muscle pain,

and she was referred to physical therapy. (Id.) Petitioner also continued her

acupuncture sessions through April of 2021. (Ex. 3, pp. 27-33.)

Petitioner presented for her physical therapy evaluation on October 27, 2020.

(Ex. 2, p. 73.) In taking petitioner’s history, the physical therapist related the onset of

petitioner’s right shoulder pain back to her service injury ten years prior, then adding

that “[s]ymptoms had been intermittent up until June, 2020 when she reports receiving a

vaccination to her right deltoid causing pain to become more constant.” (Id. at 74.)

Petitioner reported her pain as being 4/10 overall, ranging from 2/10 to 8/10. (Id.) She

characterized it as sharp pain with paresthesia at times and radiating to her hand and

finger. (Id.) Sleeping on her right side, lifting, and reaching backward were identified as

aggravating factors with no relieving activities. (Id.) On physical exam, petitioner had

reduced range of motion and reduced strength in her right shoulder and positive signs

of impingement (Speeds, Neer, and Hawkins/Kennedy). (Id. at 75.) She was assessed

as having “R shoulder pain and dysfunction” with exam findings demonstrating bicipital

and rotator cuff irritability. (Id. at 76.) Six sessions of bi-weekly physical therapy were

recommended, which petitioner pursued through February of 2021. (Id. at 77, 132, 137,

141, 162.) She would later report that the physical therapy had helped, but did not

resolve, her symptoms. (ECF No. 29-1 (Ex. 10), pp. 25-26.)8

Petitioner did not specifically seek treatment for her shoulder pain again until

April of 2022. (ECF No. 29-1, p. 25.) By that time she had filed the instant action. In

the interim, she did report a history of chronic shoulder pain aggravated by a

subsequent hepatitis B vaccination to a new primary care provider (ECF No. 29-1, p.

42) and received subsequent vaccinations in her right shoulder (Id.; Ex. 4, pp. 25, 28).

She moved to Thailand in July of 2021 and pursued acupuncture while there, though no

records of this treatment are available. (ECF No. 17; Ex. 7, p. 5.) Petitioner averred

that once she moved to Thailand it was difficult to receive regular care due to a lack of

English-speaking doctors in the town where she lived. (Ex. 14, ¶ 26.)

8

This exhibit is not properly bates stamped with exhibit page numbers. Therefore, this exhibit will be

cited by its ECF number and pin citation will be to the ECF pagination.

9

Petitioner followed up with an orthopedist regarding her shoulder pain on April

13, 2022, during a return visit to the U.S. (ECF No. 29-1, p. 25.) She reported her

history of an injury to her right shoulder that she sustained while still in service

approximately ten years ago, specifically a right shoulder sprain. (Id.) Additionally,

petitioner noted that after she received her hepatitis B vaccine, she started to

experience “increased right shoulder pain.” (Id.) At this time, petitioner reported that

[s]he localizes the pain primarily to the anterior aspect of the shoulder. The

pain bothers her when she is running and she is unable to do push-ups

because of the pain. She reports occasional numbness and tingling in the

hand since her injury in the service but only notices numbness and tingling

in her hand a few times per month. She denies any neck pain or radicular

type symptoms.

(Id. at 26.) On physical exam, petitioner had mild tenderness to palpation over the

bicipital groove, anterior aspect of the glenohumeral joint, acromioclavicular joint, and

lateral border of the proximal humerus. (Id. at 27.) She had reduced range of motion,

but did have full strength. (Id.) Impingement testing was negative, but she did report

pain with the empty can test. (Id.) No diagnosis was rendered, and an MRI was

recommended for further evaluation. (Id.)

On May 27, 2022, petitioner presented to Bangkok Hospital Pattaya in Bangkok,

Thailand, with a complaint of ongoing right shoulder pain. (Ex. 12, pp. 2-3.)9 She

received a cortisone injection. (Id. at 3.) However, petitioner returned to the hospital on

June 24, 2022, complaining of continued right shoulder pain at the bicipital grove. (Id.

at 4.) She reported that while the cortisone injection offered some relief, she still

experienced pain in her right shoulder. (Id.) Upon physical examination, the treating

provider documented that petitioner’s right shoulder was tender at the bicipital groove

with positive signs of impingement. (Id.) The treating provider ordered an MRI, which

was unremarkable, except for a minimal low grade partial thickness tear at the articular

surface of the subscapularis tendon involving the inferior fiber. (Id. at 5-6, 8.) Petitioner

was diagnosed with rotator cuff syndrome. (Id. at 5.) The treating provider ordered ten

sessions of physical therapy for right shoulder muscle strengthening, which petitioner

completed between June 28, 2022, and July 29, 2022. (Id. at 5, 19-29.) Upon physical

exam at her physical therapy sessions, petitioner had limited range of motion in her right

shoulder, moderate tenderness along the right bicipital tendon, and right shoulder pain

on active motion. (Id. at 19-29.)

Petitioner had a second MRI performed on March 22, 2023. (Ex. 13, p. 12.)

That MRI was interpreted as having an intact rotator cuff but showed minimal bursal

fluid and bone marrow edema of the distal clavicle. (Id.) Petitioner saw an orthopedist

9

While petitioner originally filed Exhibit 12 on August 22, 2022 (ECF No. 35), she filed an amended

version of Exhibit 12 on September 15, 2022 (ECF No. 37.) All citations to Exhibit 12 refer to the

amended version at ECF No. 37. While the amended version of Exhibit 12 is erroneously bates stamped

as “Denton Exhibit 12,” careful review of the document indicates that the records relate to petitioner’s

encounter at Bangkok Hospital. (See Ex. 12.)

10

on May 31, 2023. (Id. at 14.) On exam, she had full range of motion, but mild pain

during Neer and Hawkins testing. (Id.) She was diagnosed with bicep tendonitis,

subacromial bursitis, shoulder impingement syndrome, and rotator cuff tendinopathy.

(Id. at 15.)

IV. Expert Opinions

a. Marko Bodor, M.D., for petitioner10

Dr. Bodor acknowledges that petitioner had a pre-vaccination history of neck and

shoulder pain, but stresses that this pain was related to a trapezius and periscapular

spasm affecting the back of the shoulder with no involvement of the shoulder joint and

notes that her May 18, 2012 right shoulder MRI was normal. (Ex. 20, p. 1 (discussing

Ex. 8, pp. 66, 270, 277).) He characterizes petitioner’s initial injury as a whiplash injury.

(Id. at 3.) He credits petitioner’s account of her post-vaccination symptoms and finds

notable both that petitioner’s post-vaccination acupuncture records identify the right

deltoid as a site of pain and that her October 2020 physical therapy records document

reduced range of motion with positive signs of impingement. (Id. at 2 (discussing Ex. 3,

p. 34; Ex. 2, pp. 72-76).) He characterizes petitioner’s 2022 MRI as unremarkable but

notes the 2023 MRI to have shown minimal subacromial bursal fluid. (Id. (discussing

Ex. 12, p. 8; Ex. 13, p. 12).)

Dr. Bodor opines that petitioner’s pre- and post-vaccination shoulder pain

stemmed from difference sources. (Ex. 20, p. 2.) While the pre-vaccination pain

represented pain in the rhomboid and trapezius stemming from the head and neck

rather than a shoulder injury, “pain from the rotator cuff and bursa, the most commonly

injured structures in SIRVA, is typically experienced primarily around the region of the

deltoid muscle, where [petitioner] experienced new pain after the vaccination.” (Id. at 2-

3.) He further opines that “she also had some pain in the anterior shoulder, around the

biceps tendon, which could stem from an element of adhesive capsulitis or referred pain

from the infraspinatus muscle or tendon, which paradoxically refers pain to the anterior

shoulder. (Id. (citing JOSEPH M. DONNELLY ET AL., TRAVELL SIMONS & SIMONS’ MYOFASCIAL

PAIN AND DYSFUNCTION 232-33 (3d ed. 2019) (Ex. 25)).) In general, reduced range of

motion, which was only objectively documented post-vaccination, correlates with

conditions of the shoulder more so than conditions of the neck. (Id.)

10

Dr. Bodor received his medical degree from the University of Cincinnati Medical School in 1987. (Ex.

26, p. 1.) He completed his surgical internship at the University of California, San Diego in 1988, and his

residency in physical medicine and rehabilitation at the University of Michigan in 1993. (Id.) He

maintains his license to practice medicine in California and is board-certified in physical medicine and

rehabilitation, sports medicine, and pain medicine. (Id.; Ex. 20, p. 1.) Dr. Bodor currently practices in

private practice and serves as a voluntary assistant professor of neurological surgery at the University of

California, San Francisco and physical medicine and rehabilitation at the University of California, Davis.

(Ex. 26, p. 1.) He has treated or consulted on approximately 70 patients with vaccine-related shoulder

dysfunction. (Ex. 20, p. 1.) Dr. Bodor has offered expert opinions in more than fifty SIRVA cases. (Ex.

20, p. 1.)

11

b. Paul Cagle, M.D., for respondent11

Dr. Cagle presents the timing of onset of post-vaccination symptoms as a

threshold issue with respect to consideration of whether petitioner suffered a SIRVA.

(Ex. A, p. 7.) He suggests there is no medical record support for onset of shoulder pain

arising within 48 hours of vaccination. (Id.) He notes that petitioner’s acupuncture

encounters following her vaccination make no mention of new or different right shoulder

pain, and that when petitioner first reported her symptoms to her primary care provider

on August 9, 2020, she reported that onset occurred “a few days” after vaccination.

(Id.)

Dr. Cagle also does not agree that the records show, more likely than not, that

petitioner suffered decreased range of motion post-vaccination. (Ex. A, p. 7.) Although

Dr. Cagle acknowledges that petitioner’s post-vaccination physical therapy records

document between 80 to 110 degrees of forward flexion, her prior range of motion

assessment from January 11, 2013 demonstrated 90 degrees of forward flexion, which

is not a significant difference. (Id. at 8.) Similarly, the post-vaccination range of motion

was documented during physical therapy as including abduction of 70 or 84 degrees

compared to 100 degrees in January of 2013. (Id.)

Regarding petitioner’s pre-vaccination symptoms, Dr. Cagle stresses that

petitioner specifically reported in October of 2020 that her symptoms began with a

shoulder strain she experienced during the mortar blast in Afghanistan and that her

records document a service-connected sprain of the infraspinatus, which is one of the

rotator cuff muscles. (Ex. A, p. 8 (discussing ECF No. 19-1, p. 425).) Thus, Dr. Cagle

disagrees with Dr. Bodor’s assessment of the difference between the pre- and post-

vaccination presentation, specifically challenging the notion that petitioner’s pre-

vaccination condition did not relate to the same area of her shoulder. (Id.) Moreover,

Dr. Cagle notes that the fact that petitioner’s pre-vaccination condition included an

infraspinatus sprain is significant, because Dr. Bodor invoked rotator cuff dysfunction,

and the infraspinatus specifically, in seeking identify petitioner’s post-vaccination

condition as consistent with SIRVA. (Id. at 9.) Dr. Cagle otherwise suggests that

petitioner’s history in 2012 of pain radiating down the right arm into the hand is

suggestive of a cervical radiculopathy and inconsistent with a shoulder-based

pathology. (Id.) He notes that a cervical basis for petitioner’s shoulder symptoms would

be incompatible with the fourth SIRVA criterion. (Id.)

11

Dr. Cagle earned his medical degree from Loyola University Chicago Stritch School of Medicine in

2008. (Ex. B, p. 1.) He completed his residency in orthopedic surgery at the University of Minnesota

Academic Health Center and Medical School in 2013. (Id.) In 2014, Dr. Cagle went on to a complete a

fellowship focusing on shoulder and elbow care at Mount Sinai Hospital, and an additional shoulder

fellowship at Private Hospital Jean Mermoz/Centre Orthopaedic Santy in Lyon, France. (Id.) He is board-

certified in orthopedic surgery. (Id. at 2.) Currently, Dr. Cagle serves as an associate professor of

orthopedics at the Icahn School of Medicine at Mount Sinai in New York City. (Id. at 1.) Dr. Cagle

focuses his clinical practice on the shoulder, and he has successfully treated patients with SIRVA. (Ex. A,

p. 2.)

12

Finally, Dr. Cagle asserts that petitioner “simply lacks any objective evidence of

any type of vaccine-related shoulder injury.” (Ex. A, p. 9.) Based on his own review of

the imaging, Dr. Cagle opines that petitioner’s 2022 MRI was unremarkable and

stresses that it is inconsistent with SIRVA in lacking evidence of any inflammatory or

fluid signals. (Id. (citing Paul J. Cagle, Jr., Shoulder Injury After Vaccination: A

Systematic Review, REVISTA BRASILEIRA DE ORTOPEDIA (Dec. 16, 2020) (Ex. A, Tab 2)).)

Dr. Cagle is critical of the “multitude” of diagnoses subsequently rendered by petitioner’s

orthopedist in March of 2023, which he characterizes as “under-supported.” (Id.) He

stresses that she experienced only mild pain with Neer’s and Hawkins tests and that the

tests lack sensitivity and specificity. (Id. (citing E.J. Hegedus et al., Physical

Examination Tests of the Shoulder: A Systematic Review with Meta-Analysis of

Individual Tests, 42 BRIT. J. SPORTS MED. 80 (2008) (Ex. A, Tab 3)).) Dr. Cagle notes

that Dr. Bodor cites multiple different diagnoses relative to petitioner’s post-vaccination

presentation (rotator cuff injury, injury to the bursa, adhesive capsulitis, infraspinatus

issue) without providing any medical evidence to support any of these diagnoses. (Id.)

Instead, Dr. Cagle opines that no convincing diagnosis is presented. (Id.)

V. Party Contentions

In both her initial memorandum and her motion for a ruling on the written record,

petitioner explains her disagreements with respondent’s interpretation of the medical

records. (ECF No. 61; ECF No. 75-1.) Petitioner argues that she has met the QAI

requirements for Table SIRVA or, alternatively, satisfied the three-part Althen test for

causation-in-fact. (ECF No. 75-1, pp. 18-28.) Based on his review of the medical

history, respondent contends that petitioner has not met her burden of proof under any

of the four SIRVA criteria and further that petitioner has not presented a cause-in-fact

claim, especially given the lack of objective evidence of a shoulder injury. (ECF No.

76.)

a. Table SIRVA

Regarding her alleged Table SIRVA, petitioner addresses the first criterion (prior

history) and fourth criterion (other conditions) together. (ECF No. 75-1, pp. 18-21.)

Relying on Dr. Bodor’s medical opinion, she argues that her pre-vaccination injury

cannot explain her post-vaccination presentation, because her pre-vaccination condition

mainly affected her neck and her trapezius at the back of her shoulder. (Id. at 18.) She

stresses that her pre-vaccination MRI and EMG were both negative. (Id. at 18-19.)

Petitioner acknowledges her disability paperwork describes her injury as a “shoulder

sprain,” but argues that this is not a diagnosis listed in any of her prior medical records.

(Id. at 19.) She contends an isolated history indicating reduced range of motion from

January 11, 2013, is an “aberration,” stressing that other records found complete range

of motion. (Id. at 19-20 (comparing ECF No. 19-1, p. 460, with Ex. 9, p. 105); see also

ECF No. 79, pp. 1-2.) By contrast, petitioner argues her description of new and different

pain arising post-vaccination and affecting primarily her deltoid region should be

credited. (Id. at 21.) According to Dr. Bodor, this type of pain is anatomically distinct

from the type of whiplash injury that explains petitioner’s prior history of symptoms. (Id.)

13

Noting her prior combat injuries, petitioner stresses that “[s]imply because she had

these injuries does not mean [she] is incapable of, or did not suffer from, a new injury

following her vaccination.” (ECF No. 79, p. 5.)

Respondent endorses Dr. Cagle’s understanding of petitioner’s medical records.

(ECF No. 76, p. 13.) Thus, he argues that petitioner’s pre-vaccination condition

included an infraspinatus strain, contradicting Dr. Bodor’s reasoning as to why the pre-

and post-vaccination presentations were distinct. (Id. at 13-14.) Respondent further

stresses that petitioner requested an acupuncture referral for the treatment of her

longstanding history of right shoulder pain just four days prior to her vaccination. (Id. at

13.) Thus, respondent argues that petitioner’s post-vaccination symptoms are

explained by a pre-existing rotator cuff injury. (Id. at 13-14.)

The parties’ arguments with respect to the third criterion (pain and reduced range

of motion limited to the affected shoulder) rise or fall in conjunction with their arguments

relative to the first and fourth criteria. Because respondent views petitioner’s entire

history, both pre- and post-vaccination as a single injury, he argues that her neck, back,

and hand symptoms are incompatible with petitioner’s burden of showing her condition

was limited to her shoulder. (ECF No. 76, pp. 16-17.) However, because petitioner

argues that her post-vaccination injury is distinct from her pre-existing symptoms, she

further contends that there is no basis for contending relative to the third criterion (pain

and reduced range of motion) that her alleged SIRVA was not limited to the affected

shoulder. (ECF No. 75-1, p. 25; see also ECF No. 79, p. 4).)

Regarding the second criterion (onset), petitioner stresses that under the Vaccine

Act, onset may be found in petitioner’s favor even when it is not recorded in the

contemporaneous medical records. (ECF No. 75-1, p. 22 (quoting § 300aa-13(b)(2)).)

Petitioner argues that the lack of any notation of her vaccination in her acupuncture

records should not be viewed as informative and that those records otherwise support

the presence of a new type of pain. (Id. at 23-24.) She further argues that, because

she was initially told her post-vaccination pain was normal, because she pursued

acupuncture for multiple reasons, and because acupuncturist’s do not generally assess

causation, the silence of the acupuncture records should be expected. (Id.; ECF No.

79, pp. 2-3.) She urges that her two affidavits and her mother’s additional statement

should be credited and that they reasonably corroborated by her August 8, 2020

message to her primary care provider in which she attributed new symptoms to her

vaccination. (ECF No. 75-1, pp. 22-23.) Although that message indicated that onset of

symptoms occurred “a few days” after vaccination, petitioner argues that this is vague

rather than incompatible with a 48-hour onset. (Id. at 24.)

Respondent argues, however, that there is no support for a 48-hour onset within

the contemporaneous medical records. (ECF No. 76, pp. 14-16.) He argues that the

acupuncture records do not support the onset of a new and distinct shoulder pain and

that when she did later report her symptoms to her primary care provider, she placed

onset “a few days” after vaccination, which should not be viewed as adequate given the

overall circumstances. (Id. at 15.) Respondent argues that the Facebook messages

14

filed by petitioner indicate she first communicated her symptoms to her family on August

9, 2020, diminishing the credibility of her mother’s statement indicating this occurred

within a day or two of the vaccination. (Id. at 15-16.)

b. Causation-in-Fact

Petitioner acknowledges that Dr. Bodor did not explicitly provide a theory of

causation in his report but contends that the theory is implicit by the references cited,

which explain how improper vaccine administration can result in injury to the

subacromial bursa, rotator cuff or underlying bone. (ECF No. 75-1, p. 26.) Petitioner

argues that the fact that respondent has created a Table injury based on these concepts

supports the validity of such a causal relationship under the first Althen prong. (Id.

(citing L.J. v. Sec’y of Health & Human Servs., No. 17-59V, 2021 WL 6845593, at *14

(Fed. Cl. Spec. Mstr. Dec. 2, 2021).) Petitioner asserts that Dr. Bodor’s explanation of

her post-vaccination presentation as demonstrating pain, range of motion deficits, and

positive functional tests is adequate to meet her burden under the second Althen prong.

(Id. at 27.) Finally, petitioner argues relative to Althen prong three that an appropriate

temporal relationship may be found up to four days post-vaccination, which petitioner

argues is compatible with her report of symptoms arising “a few days” after vaccination.

(Id. at 27-28 (citing Tenneson v. Sec’y of Health & Human Servs., No. 16-1664V, 2018

WL 3083140, at *8 (Fed. Cl. Spec. Mstr. Mar. 30, 2018).)

Respondent counters that petitioner may not simply rely on the concept of SIRVA

to support a cause-in-fact claim. (ECF No. 76, p. 17.) Instead, respondent suggests

that there should be an analysis of whether a specific shoulder-related diagnosis can be

associated with vaccine administration. (Id.) Citing Dr. Cagle’s competing explanation,

respondent argues that Dr. Bodor’s opinion is inadequate to establish that petitioner

suffered a shoulder injury consistent with a SIRVA-type injury because there is a lack of

objective evidence to support the presence of inflammation or any specific diagnosis.

(Id. at 17-18.) Moreover, none of petitioner’s treating physicians attributed her condition

to her vaccination. (Id. at 18.) Respondent also asserts that petitioner cannot meet the

third Althen prong on this record. (Id.) Although respondent asserts based on Dr.

Cagle’s opinion that petitioner’s condition is related to her prior service injury, he did not

argue that there is sufficient evidence for him to meet his own shifted burden of proof to

demonstrate a factor unrelated to vaccination as the cause of petitioner’s injury. See

§ 300aa-13(a)(1)(B).

VI. Analysis

a. Table SIRVA

The first SIRVA criterion requires that there be “[n]o history of pain, inflammation

or dysfunction of the affected shoulder prior to intramuscular vaccine administration.”

42 C.F.R. § 100.3(c)(10)(i). Importantly, however, the first SIRVA criterion only

addresses prior shoulder dysfunction “that would explain the alleged signs, symptoms,

examination findings, and/or diagnostic studies occurring after vaccine injection.” Id.

15

Relatedly, the fourth SIRVA criterion requires that “[n]o 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, and any other neuropathy).” 42

C.F.R. § 100.3(c)(10)(iv).

Consideration of the fourth SIRVA criterion “requires consideration of a

petitioner’s medical condition as a whole.” Record v. Sec’y of Health & Human Servs.,

175 Fed. Cl. 673, 680 (2025). However, while the “other condition or abnormality” at

issue must qualify as an explanation for the petitioner’s symptoms, it “need not be a

better or more likely explanation.” French v. Sec’y of Health & Human Servs., No. 20-

0862V, 2023 WL 7128178, at *6 (Fed. Cl. Spec. Mstr. Sept. 27, 2023). Indeed, a

petitioner may fail to meet the fourth SIRVA criterion even where there is clinical

evidence of an alternative condition that falls short of a definitive diagnosis. Durham v.

Sec’y of Health & Human Servs., No. 17-1899V, 2023 WL 3196229, at *14 (Fed. Cl.

Spec. Mstr. May 2, 2023) (noting that the regulation cites “clinical evidence of” various

conditions). Ultimately, where the presence of another condition is apparent, petitioner

bears the burden of proving that the condition nonetheless “would not explain” her

symptoms. Id.

Here, while Dr. Bodor acknowledges petitioner to have had prior injuries, he

opined that her prior condition does not explain her subsequent presentation. (Ex. 20.)

Specifically, he opined that while petitioner’s pre-vaccination condition related to her

rhomboid and trapezius, her post-vaccination condition related to her rotator cuff and

bursa. (Id. at 2-3.) Thus, he opined that the former would not explain the signs and

symptoms of the latter. (Id.) This is not persuasive given the record at issue.

Following her injuries in Afghanistan, petitioner’s first physical exam upon return

to the U.S. in February of 2012 specifically documented that her condition included “no

shoulder joint involvement.” (Ex. 8, p. 270.) A subsequent exam likewise found an

absence of signs of right shoulder impingement. (ECF No. 19-1, pp. 643, 646.) In the

course of her treatment, petitioner was assessed as suffering cervicalgia (Ex. 8, p. 242)

and her prior right shoulder MRI from May of 2012 had been normal (Id. at 66.). These

initial records would seem to support Dr. Bodor’s view. However, petitioner’s

subsequent records document reduced range of motion (flexion and abduction) of her

right shoulder beginning in January of 2013 and her physical examination demonstrated

positive impingement signs (Hawkins) with a positive sign for subscapularis involvement

and deltoid weakness. (Ex. 19-1, pp. 468-69, 483-84.) Thus, as Dr. Cagle observed,

petitioner’s ultimate grant of disability included a right shoulder infraspinatus strain. (Id.

at 459-60.) Petitioner is not persuasive in arguing that the findings relative to her rotator

cuff were merely an aberration. (ECF No. 75-1, pp. 19-20.) Not only were these

findings, which were supported by physical examination, credited as part of her

disability status, but even subsequent to having initiated this action, petitioner reported

to her medical providers that her service injury included a right shoulder strain. (ECF

No. 29-1, p. 25.)

16

Therefore, Dr. Cagle is persuasive in concluding that petitioner’s pre-vaccination

condition included a shoulder strain affecting the rotator cuff and Dr. Bodor is not

persuasive in trying to distinguish petitioner’s pre-vaccination condition as including only

a cervical neck injury affecting the trapezius and periscapular muscles. (Compare Ex.

20, p. 1, with Ex. A, p. 8.) Moreover, Dr. Bodor based his opinion on the incorrect

assumption that petitioner experienced objectively documented reduced range of

motion only after the vaccination at issue. (Ex. 20, pp. 2-3.)

While petitioner averred that her prior condition had improved in 2019 (Ex. 14, ¶¶

12-13), she acknowledged ongoing “sporadic” shoulder pain even after that point and

had sought to resume treatment for her service injuries, including right shoulder pain,

shortly before the vaccination at issue (Id.; Ex. 2, pp. 88-89). When petitioner presented

for physical therapy relative to her post-vaccination shoulder pain, she demonstrated

reduced range of motion (again, flexion and abduction) and reduced strength as well as

positive signs of impingement (Speeds, Neer, and Hawkins/Kennedy), similar to her

prior examination. (Ex. 2, pp. 73, 75.) Dr. Cagle further explained that petitioner’s post-

vaccination reduced range of motion was not more severe than the reduced range of

motion she experienced pre-vaccination. (Ex. A, p. 8.) Petitioner sought to distinguish

her post-vaccination symptoms by averring that she experienced pain in the deltoid area

as well as a popping or cracking sensation. (Ex. 14, ¶ 22.) However, her prior records

confirm that pre-vaccination she was likewise experiencing mechanical symptoms, such

as clicking, as well as tenderness and weakness around the biceps and deltoid. (ECF

No. 19-1, pp. 483-84, 468-69.) Petitioner’s subsequent treatment was thin; however,

both experts agree that her subsequent 2022 MRI was unremarkable. (Ex. 20, p. 2; Ex.

A, p. 9.) Thus, imaging did not confirm any new shoulder pathology and her ultimate

diagnosis from her treating orthopedist included rotator cuff tendinopathy. (Ex. 13, p.

15.)

Accordingly, there is not preponderant evidence that petitioner was free of any

history of pain, inflammation or dysfunction of her right shoulder that would explain her

alleged post-vaccination condition, as required by the first SIRVA criterion.

In light of this finding, I further find that Dr. Cagle is more persuasive than Dr.

Bodor in opining as to whether petitioner’s prior service injury would explain her post-

vaccination symptoms. While petitioner’s medical history is complicated, the

persuasiveness of Dr. Bodor’s conclusion is hindered by his reliance on factual

assumptions running counter to the facts as I have ultimately found them. Burns v.

Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that “[t]he

special master concluded that the expert based his opinion on facts not substantiated

by the record. As a result, the special master properly rejected the testimony of

petitioner's medical expert.”); Dobrydnev v. Sec’y of Health & Human Servs., 566 F.

App’x 976, 982-83 (Fed. Cir. 2014) (holding that the special master was correct in

noting that “when an expert assumes facts that are not supported by a preponderance

of the evidence, a finder of fact may properly reject the expert's opinion”); Bushnell v.

Sec'y of Health & Human Servs., No. 02-1648V, 2015 WL 4099824, at *12 (Fed. Cl.

Spec. Mstr. June 12, 2015) (finding that “because Dr. Marks' opinion is based on a false

17

assumption regarding the onset of J.R.B.'s condition, and the incorrect assumption of a

‘stepwise regression’ after each vaccine administration, it should not be credited”).

Namely, Dr. Bodor’s purported ability to distinguish petitioner’s alleged SIRVA from her

prior service injury is premised on the absence of a prior rotator cuff injury and a new

onset or reduced range of motion occurring post-vaccination. But this is not petitioner’s

presentation. Absent added expert analysis, petitioner’s medical records are not

otherwise sufficient to distinguish her alleged SIRVA from her pre-existing injury.

In reaching this conclusion, I have also considered petitioner’s account that she

experienced an abrupt onset of pain and that she experienced unusual pain during the

injection. (Ex. 14, ¶ 15.) Because SIRVA is itself broadly defined as an unspecified

musculoskeletal injury affecting the shoulder (42 C.F.R. § 100.3(c)(10)), alternative

explanations based on conditions or abnormalities intrinsic to the shoulder raise a

potentially more difficult question. See Lang v. Sec'y of Health & Human Servs., No.

17-995V, 2020 WL 7873272, at *12-13 (Fed. Cl. Spec. Mstr. Dec. 11, 2020); see also

Durham, 2023 WL 3196229, at *14 n.11. A finding that a petitioner has preexisting

shoulder pathology does not per se preclude a finding that a Table SIRVA exists. Lang,

2020 WL 7873272, at *13. Rather, in that context the question is “whether petitioner's

own clinical history indicates that her shoulder pathology wholly explains her symptoms

independent of vaccination.” Id.; see also, Molina v. Sec'y of Health & Human Servs.,

No. 20-845V, 2024 WL 4223393, at *8 (Fed. Cl. Spec. Mstr. Aug. 15, 2024) (finding that

petitioner's diagnosis of calcific tendinitis precluded a Table SIRVA under the fourth

SIRVA criterion because it is “a condition that can in itself present with acute onset of

shoulder pain”).

Although I do not doubt the sincerity of petitioner’s account, I cannot credit

petitioner’s recollection as reliable because it is contradicted by the contemporaneous

records. Specifically, petitioner’s vaccination record confirmed that she “[t]olerated

procedure well. Left with no new complaints.” (Ex. 2, p. 202.) And when she first

reported her post-vaccination shoulder pain to her primary care provider, she explained

that “I got my second Hepatitis B shot a few weeks ago. I noticed some normal pain at

the site, but after a few days I started noticing some pain in the shoulder and arm.” (Id.

at 195.) Any argument that the vaccination record’s report of no new complaints should

be viewed as merely pro forma is fatally undercut by petitioner’s explicit confirmation to

her primary care provider that she perceived her initial post-vaccination pain as

“normal.” And, even if petitioner’s report of more significant pain occurring “a few days”

post-vaccination was credited as being consistent with her burden of proof under the

second SIRVA QAI criterion (pain beginning within 48-hours), this would not be

dispositive regarding the fourth criterion. Pulsipher v. Sec’y of Health & Human Servs.,

No. 21-2133V, 2025 WL 1364203, at *11 (Fed. Cl. Spec. Mstr. Apr. 24, 2025)

(explaining that “[e]ven assuming arguendo that petitioner met her burden of proof

under the second criterion, the issue here would still be that she has not preponderantly

demonstrated that the pattern of onset she experienced is incompatible with

glenohumeral osteoarthritis being the explanation for her symptoms irrespective of her

vaccination”). While petitioner recalls a distinct onset of shoulder pain following

vaccination, this is potentially consistent with her assertion that the pain she experienced

18

due to her prior injury continued presenting “sporadically” beginning in 2019, even if an

episode occurred within 48 hours of vaccination. (Ex. 14, ¶¶ 12-13.)

Thus, the evidence also preponderates in favor of a finding under the fourth

SIRVA criterion that petitioner’s post-vaccination condition is explained by her prior

service injury.

b. Causation-in-Fact

Causation-in-fact is determined by the three-part Althen test. Under the first

Althen prong, petitioner must present a general medical theory explaining that the

vaccine in question “can” cause the type of injury in question. Pafford, 451 F.3d at

1355-56. Under the second and third prongs, petitioner must present evidence that the

vaccine “did” cause petitioner’s own injury. Id. The third prong asks whether the timing

of injury in this specific case aligns with what would be expected under the general

theory presented under Althen prong one. Id. at 1358. The second Althen prong

examines the petitioner’s own medical history to see if a logical sequence of cause and

effect exists to support vaccine causation. Althen, 418 F.3d at 1278. Here, even

granting petitioner the assumption that she met her burden of proof under the first and

third Althen prongs, she still cannot prevail under Althen prong two.

The second Althen prong requires proof of a logical sequence of cause and

effect, usually supported by facts derived from a petitioner’s medical records. Althen,

418 F.3d at 1278; Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1375-77

(Fed. Cir. 2009); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1326

(Fed. Cir. 2006); Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1148 (Fed.

Cir. 1992). In establishing that a vaccine “did cause” injury, the opinions and views of

the injured party’s treating physicians are entitled to some weight. Andreu, 569 F.3d at

1367; Capizzano, 440 F.3d at 1326 (quoting Althen, 418 F.3d at 1280) (stating that

“medical records and medical opinion testimony are favored in vaccine cases, as

treating physicians are likely to be in the best position to determine whether a ‘logical

sequence of cause and effect show[s] that the vaccination was the reason for the

injury’”). However, medical records and/or statements of a treating physician’s views do

not per se bind the special master to adopt the conclusions of such an individual, even if

they must be considered and carefully evaluated. See § 300aa-13(b)(1) (providing that

“[a]ny such diagnosis, conclusion, judgment, test result, report, or summary shall not be

binding on the special master or court”); Snyder v. Sec’y of Health & Human Servs., 88

Fed. Cl. 706, 746 n.67 (2009) (stating that “there is nothing . . . that mandates that the

testimony of a treating physician is sacrosanct—that it must be accepted in its entirety

and cannot be rebutted”). Ultimately, petitioner may support her claim either through

her medical records or by expert opinion. § 300aa-13(a)(1).

The Federal Circuit has cautioned that the second Althen prong “is not without

meaning.” Satisfying Althen prongs one and three serves largely as a threshold

demonstration that a petitioner’s claim is even possible. The Court explained that

19

There may well be a circumstance where it is found that a vaccine can

cause the injury at issue and where the injury was temporally proximate to

the vaccination, but it is illogical to conclude that the injury was actually

caused by the vaccine. A claimant could satisfy the first and third prongs

without satisfying the second prong when medical records and medical

opinions do not suggest that the vaccine caused the injury, or where the

probability of coincidence or another cause prevents the claimant from

proving that the vaccine caused the injury by preponderant evidence.

Capizzano, 440 F.3d at 1327 (emphasis in original). Thus, it is well established that in

terms of demonstrating specific causation, temporal association alone is not enough to

satisfy petitioner’s burden of proof. See, e.g., Veryzer v. Sec’ y of Health & Hu man

Servs., 100 Fed. Cl. 344, 356 (2011) (explaining that “a temporal relationship alone will

not demonstrate the requisite causal link and that petitioner must posit a medical theory

causally connecting [the] vaccine and injury”), aff’d per curiam sub nom. Veryzer v.

United States, 475 F. App’x 765 (Fed. Cir. 2012); A.Y. by J.Y. v. Sec’y of Health &

Human Servs., 152 Fed. Cl. 588, 595 (2021); Forrest v. Sec’y of Health & Human

Servs., No. 10-032V, 2017 WL 4053241, at *18 (Fed. Cl. Spec. Mstr. Aug. 10, 2017);

Cozart v. Sec’y of Health & Human Servs., No. 00-590V, 2015 WL 6746616, at *18 (Fed.

Cl. Spec. Mstr. Oct. 15, 2015), aff’d, 126 Fed. Cl. 488 (2016); Crosby v. Sec’y of Health

& Human Servs., No. 08-799V, 2012 WL 13036266, at *37 (Fed. Cl. Spec. Mstr. June

20, 2012).

Here, none of petitioner’s treating physicians opined that she suffered right

shoulder dysfunction caused by her vaccination. While petitioner’s primary care

physician did accept petitioner’s history to the extent of documenting muscle pain status

post-vaccination (Ex. 2, p. 182), neither her physical therapist nor the orthopedist who

diagnosed rotator cuff pathology opined that her shoulder dysfunction was vaccine-

caused (Id. at 76; Ex. 13, p. 15). Moreover, as discussed above relative to petitioner’s

Table Injury claim, petitioner’s expert is not persuasive in seeking to distinguish

petitioner’s alleged post-vaccination injury from her preexisting injury. Instead, both

petitioner’s pre- and post-vaccination conditions included pain stemming from rotator cuff

dysfunction and her 2022 MRI did not demonstrate any new shoulder pathology. As Dr.

Cagle explained, the only evidence affirmatively supporting the presence of a shoulder

injury post-vaccination is the finding of positive signs of impingement (Ex. A, p. 9);

however, as previously explained, these signs were also present prior to vaccination.

Additionally, while petitioner recalls a distinct onset of shoulder pain following

vaccination, this remains consistent with her reported history of pain occurring

“sporadically” beginning in 2019. (Ex. 14, ¶¶ 12-13.) Also of note, she had otherwise

sought to resume treatment of her broader service-related musculoskeletal complaints,

which encompassed right shoulder pain, just days prior to the vaccination at issue. (Ex.

2, pp. 88-89.) Moreover, the contemporaneous records do not support her recollection

of an unusual response to injection. (Compare Ex. 14, ¶ 15, with Ex. 2, pp. 195, 202.)

On the whole, petitioner underwent limited treatment of her condition and there is

minimal treater opinion or medical evaluation from which to draw any inferences. And,

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given that Dr. Bodor’s factual assessment is less persuasive than Dr. Cagle’s, expert

medical opinion favors respondent’s explanation of events. Accordingly, petitioner has

not presented preponderant evidence of a logical sequence of cause and effecting

indicating that her vaccine was a substantial contributing factor and but for cause of her

shoulder pain.

VII. Conclusion

Petitioner has my sympathy for the pain she has endured, and I do not doubt her

sincerity in bringing this claim. However, for all the reasons discussed above, she has

not met her burden of proof. Petitioner stressed in her reply brief that she “suffered for

years following two terrible injuries sustained while serving her country. Simply

because she had these injuries does not mean Petitioner is incapable of, or did not

suffer from, a new injury following her vaccination.” (ECF No. 79, p. 5.) I do not take

this point lightly. Careful consideration has been given to ensure that petitioner is not

worse off than other similarly situated petitioners in seeking to prove her claim simply

because she served and sacrificed for her country. However, the evidence clearly

indicates that petitioner’s service injury for which she was placed on disability

encompassed a right rotator cuff injury and there is little to no evidence, apart from

petitioner’s subjective account, to substantiate any distinct post-vaccination shoulder

injury. Therefore, this case is dismissed.12

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

12

In the absence of a timely-filed motion for review of this Decision, the Clerk of the Court shall enter

judgment accordingly.

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