Chu v. Secretary of Health and Human Services

In the United States Court of Federal Claims

No. 21-1185

(Filed: 28 January 2026 *)

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MIRANDA CHU, *

*

Petitioner, *

*

v. *

*

SECRETARY OF HEALTH AND HUMAN *

SERVICES, *

*

Respondent. *

*

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Jason L. Jorgenson, of Philbrook Law, of Vancouver, WA, and Amber D. Wilson, Wilson

Science Law, of Washington, DC, for petitioner.

Adam N. Muffett, Trial Attorney, Torts Branch, Civil Division, U.S. Department of

Justice, of Washington, DC, for respondent.

OPINION AND ORDER

HOLTE, Judge.

“[W]hile most of the Nation[] enjoy[s] a greater benefit from immunization programs, a

small but significant number have been gravely injured.” Cloer v. Sec’y of Health & Hum.

Servs., 654 F.3d 1322, 1325 (Fed. Cir. 2011) (quoting H.R. Rep. No. 99-908, at 4 (1986)); see

also Boatmon v. Sec’y of Health & Hum. Servs., 941 F.3d 1351, 1364 (Fed. Cir. 2019) (Newman,

J., dissenting) (quoting National Childhood Vaccine-Injury Compensation Act: Hearing on

S.2117 Before the S. Comm. on Labor & Human Res., 98th Cong. 2 (1984) (statement of Sen.

Orrin Hatch, S. Comm. on Labor & Human Res.) (“Senator Hatch cautioned, there is ‘a small

but significant public health problem—the incidence of harmful and occasionally even fatal

reactions to vaccines administered’”). “These few but important injuries create doubts and fears

in our National Childhood Vaccination Programs.” Boatmon, 941 F.3d at 1364 (quoting

National Childhood Vaccine-Injury Compensation Act: Hearing on S.2117 Before the S. Comm.

on Labor & Human Res., 98th Cong. at 3–4) (statement of Sen. Edward Kennedy, S. Comm. on

Labor & Human Res.). “‘[F]or the relatively few who are injured by vaccines,’” Congress

*

This opinion was initially filed under seal on 13 January 2026 pursuant to Vaccine Rule 18(b) of the Rules of the

Court of Federal Claims. The Court provided the parties 14 days to submit proposed redactions, if any, before the

opinion was released for publication in accordance with Rule 18(b). Neither party proposed redactions. This

opinion is now reissued for publication in its original form.

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determined the “‘opportunities for redress and restitution [were] limited, time-consuming, [and]

expensive.’” Cloer, 654 F.3d at 1325 (quoting H.R. Rep. No. 99-908, at 6 (1986)). Congress,

therefore, established the Vaccine Program to “compensate injured persons quickly and fairly”

for injuries “either presumed or proven to be causally connected to vaccines.” Id.

“It is well-established that the Vaccine Act is a ‘pro-claimant regime’ meant to allow

injured individuals a fair and fast path to compensation.” J.A.C. v. Sec’y of Health & Hum.

Servs., No. 2025-1751, 2025 WL 3749714, at *1 (Fed. Cir. Dec. 29, 2025) (citing K. G. v. Sec’y

of Health & Hum. Servs., 951 F.3d 1374, 1380 (Fed. Cir. 2020)). The Office of Special Masters

is tasked with furnishing a “less-adversarial, expeditious, and informal proceeding” with

“flexible and informal standards of admissibility of evidence.” 42 U.S.C. § 300aa-12(d)(2). In

furtherance of a less adversarial, expeditious, and informal proceeding, Congress created a

Vaccine Injury Table for various vaccine injuries, enumerating prerequisites (i.e., QAIs) which

confer a presumption of causation when satisfied. One of the vaccine injuries is Shoulder Injury

Related to Vaccine Administration (“SIRVA”). For SIRVA Table claims (which award a

median of $50,000 to $130,000 based on the posture of the claim), 1 a petitioner is only required

to satisfy each prerequisite, effectively showing the petitioner received the vaccine and

experienced musculoskeletal injury and reduced range of motion of the shoulder, in exchange for

a presumption the vaccine caused the injury. The Table is not intended to preclude petitioner

from compensation for a Table SIRVA claim (for the shoulder injury) just because petitioner

suffers from a separate neuropathy in other regions near the shoulder (potentially compensable

under a disparate off-Table claim). Despite these alleviated procedural requirements, here, after

four years of litigation and nearly a decade after petitioner’s date of injury, the Office of Special

Masters denied entitlement without articulating a rational basis for the decision. Specifically,

without rational analysis, the Office of Special Masters: (1) relied on Grossman v. Secretary of

Health and Human Services—a 2022 special master decision on which the Office has

increasingly relied—to elevate the requirements of QAI 3 from a simple checklist to an arduous

causation-in-fact analysis; and (2) challenged the veracity of contemporaneous medical opinions,

disregarding more recent diagnoses from specialists in favor of earlier, preliminary diagnoses (all

without expert testimony). See infra Section VIII.

1

According to an opinion penned by the Chief Special Master on 23 August 2024 detailing compensation trends for

SIRVA Table claims, petitioners were awarded a median of: $85,920.03 in cases where the special master decided

compensation; $80,240.98 in cases where the government proffered damages; $130,000.00 in cases where the

government stipulated to damages; and $50,000.00 in cases where the government stipulated to agreement. See

Yodowitz v. Sec’y of Health & Hum. Servs., No. 21-0370, 2024 WL 4284926, at *2–3 (Fed. Cl. Spec. Mstr. Aug. 23,

2024) (Corcoran, C.S.M.). Given the government pays attorneys’ fees for vaccine petitions and with the median of

all SIRVA Table claims less than $130,000 in damages, the Court notes the costs to litigate this case in attorneys’

fees—and consequently the total financial burden imposed on taxpayers—may exceed the entirety of the relief

sought. The Court reminds the government to be wary of the scorched-earth litigation strategy employed in cases

where attorneys’ fees are paid to counsel such as in vaccine cases and in rails-to-trails cases. For example, in

Hippely v. United States (a rails-to-trails case), plaintiff sought to recover over $400,000 in attorneys’ fees and costs

for a taking valued at less than $2,000. 173 Fed. Cl. 389, 399 (2024). This strategy—reimbursing plaintiffs for

exorbitant attorneys’ fees and costs despite recovering nominal compensation—is hardly novel. See, e.g., id. (citing

Caquelin v. United States, 959 F.3d 1360, 1362 (Fed. Cir. 2020)) (noting the “parties [in Caquelin] stipulated to

compensation of $900” and the government paid $1 million in legal fees); id. (citing Memmer v. United States, 50

F.4th 136 (Fed. Cir. 2022) (explaining “the government[] agreed to a settlement of $1.7 million in fees and costs in

Memmer[] when $29,000 in damages were at issue”)).

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The facts regarding petitioner’s alleged shoulder injury are straightforward. On her

nineteenth birthday almost ten years ago, petitioner visited her primary care physician’s office

for an annual physical exam and to secure medical clearance before starting a phlebotomy

program at Clark College in Vancouver, WA. At her visit, the doctors noted she was generally

healthy without any significant medical history and presented no complaints or concerns. As

part of her routine doctor’s visit, she received a Tetanus-diphtheria-acellular pertussis

vaccination in her left arm. Nine days later, petitioner returned to her doctor’s office with new

pain, numbness, and reduced range of motion in her left shoulder and elbow. Through years of

doctor’s appointments and procedures, petitioner has suffered severe chronic pain, precluding

routine activities. Petitioner has struggled to exercise at the gym, ride her motorcycle, shift gears

in her manual transmission vehicle, or adequately sleep. See infra Section I.

In 2021, petitioner filed a petition for compensation alleging she suffered a SIRVA.

After the Office of Special Masters denied petitioner entitlement, petitioner filed a Motion for

Review in this court. During the Court’s review, the government has exhaustively taken issue

with the most basic aspects of this case—disputing the Court’s statement the shoulder is

connected to the arm, challenging well-settled Federal Circuit precedent, opposing the veracity

of a signed treating physician’s notes stating he conducted a physical examination with

petitioner, and disagreeing with medical doctors on their diagnoses. See infra Section VI.A, n.5,

n.6, n.14. These disagreements delayed petitioner a quick decision and fundamentally

undermined the Vaccine Act’s aim of less-adversarial, expeditious, and informal proceedings.

See infra Section VIII. The province of the government and the Office of Special Masters in

vaccine cases is not—and Congress never so intended—to nitpick minute fibers of petitioner’s

treating physicians’ medical opinions. See infra Section VIII, n.14, n.15. For the following

reasons, the Court grants petitioner’s Motion for Review, vacates the Chief Special Master’s

decision denying entitlement, and remands to the Chief Special Master for further proceedings

consistent with this opinion.

I. Petitioner’s Medical History and Tdap Vaccination

On 21 July 2015, petitioner received a Tdap vaccination (“the vaccine”) in her left arm

during a primary care appointment. See 21 July 2015 Visit Summary at The Vancouver Clinic,

Ex. 5 at 3–4, ECF No. 1-7. At the time of vaccination, petitioner was a 19-year-old who “[was]

generally healthy without a significant past medical history.” Id. at 4. On 30 July 2015, after the

vaccination, petitioner returned to the Clinic because of “decreased [Range of Motion (“ROM”)]

in left shoulder and left elbow[, p]ain in left shoulder and upper arm and numbness/tingling

down her arm.” See 30 July 2015 MPAS Progress Notes, Ex. 5 at 15. Petitioner reported “no

pain, numbness or ROM problems before vaccination.” Id. A physical examination found

tenderness and reduced ROM in her shoulder and elbow, and a positive Tinel sign at the elbow.

Id. at 15–17. Petitioner was referred to physical therapy (“PT”), where the therapist noted a

medical diagnosis of “pain in shoulder,” and “[i]njury of ulna nerve.” See 24 August 2015 PT

Initial Eval., Ex. 5 at 45–46. The physical therapist noted, at the initial evaluation, “[p]atient

presents with decreased [Active Range of Motion], weakness in [Left Upper Extremity],

parasthesias and pain in ulnar nerve dermatome with positive [Upper Limb Tension Test] and

scapular [d]yskinesia.” See id. at 47. After several months of PT, petitioner still reported “[h]er

shoulder [was] still irritable[, and was] bothered mostly by external rotation, range of motion

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directly above her head.” See, e.g., 9 June 2016 Treating Provider’s Notes from Rebound

Orthopedics, Ex. 5 at 176. See also, e.g., 12 August PT Notes, Ex. 5 at 25 (petitioner “[c]annot

sleep on her left side[, experiences pain] with reaching back to tuck a shirt in or fasten her bra[,]

reach[ing] up to fix her hair[,] reach[ing] laterally[, and] [c]annot work out in the gym”); 9

September 2015 Rebound Physical Daily Note, Ex. 5 at 55 (petitioner “cannot drive more than

30 minutes due to severe pain from having to hold the steering wheel with left arm for manual

transmission”); 14 January 2016 PAC Notes from Rebound Orthopedics, Ex. 5 at 915 (petitioner

reporting “[s]he has difficulty driving and riding her motorcycle);

On 2 October 2015, petitioner underwent her first magnetic resonance imaging (“MRI”)

test, which showed “no rotator cuff tear[;] [a] large ganglion associated with subscapular recess

of glenohumeral joint[; and] posterior glenoid labrochondral irregularity of uncertain

significance[ but] no anterior labral tear or bony evidence of previous dislocation.” See 2

October 2015 MRI Report, Ex. 5 at 37–38. In November 2015, petitioner underwent a

diagnostic ultrasound where the doctor “was not able to identify an[y] hypoechoic areas

suggestive of a fluid accumulation at the subcoracoid bursa,” and noted the diagnosis remained

“[s]ubcoracoid bursitis of left shoulder.” See Diagnostic Musculoskeletal US Evaluation, Ex. 5

at 74. Doctors suspected petitioner suffered from a ganglion cyst in the subcoracoid bursa

(which may have preexisted the injection). See 15 October 2015 Dr. Ragsdale Analysis, Ex. 5 at

40–42. A subsequent orthopedist “reviewed her imaging including her MRI which reveals the

cyst,” and as “[t]he cyst is in the region of the subscapularis,” “th[ought] it would be reasonable

to continue with physical therapy at this time and get a repeat MRI approximately 3 months from

the original MRI.” 16 December 2015 Dr. DaSilva Visit Summary, Ex. 5 at 107.

Then, on 5 January 2017 and 3 March 2017, petitioner underwent MRI arthrograms with

and without contrast, and upon inspection, a doctor opined petitioner has a lesion which “likely

represents a benign or low-grade mass and could be a myxoma or lymphatic or possibly vascular

malformation.” 6 March 2017 MRI Left Shoulder WO/W Contrast Notes, Ex. 5 at 372–73. On

29 March 2017, petitioner reported “pain about the [left] shoulder girdle particularly with

activities . . . occasional episodes of pain radiating down the arm as well as paresthesia along the

ulnar border of the forearm and in the 3rd, 4th, 5th finders.” See Kaiser March Medical Report,

Ex. 5 at 347. On 8 August 2017, petitioner started care at Oregon Health and Science University

(“OHSU”) and reported left shoulder pain and reduced ROM beginning the day of vaccine

administration. See 8 August 2017 OHSU Medical Report, Ex. 5 at 731. A vascular anomaly

resident/fellow at OHSU noted petitioner has a “vascular malformation of the left shoulder” and

discussed potential origins for the vascular malformations. Id. at 732–33 (also noting an

attending physician concurred with the resident/fellow’s conclusion). The OHSU vascular

anomaly team recommended petitioner follow up with Dr. Kaufman (an OHSU interventional

radiologist) for possible sclerotherapy. Id.

On 9 January 2018, petitioner visited Dr. Kaufman, who noted “[the malformation did]

not appear to involve the neurovascular by imaging but is associated with local pain, decreased

ROM, and tingling in fingers. It is deeply located in the subcoracoid soft tissues and laterally

abuts the coracoid process. There is no apparent joint involvement. Percutaneous access to the

lesion will be challenging due to the location deep to the scapula and difficulty with US

[ultrasound] visualization will likely require fluoroguidance with bony landmarks.” See 9

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January 2018 OHSU Medical Progress Report, Ex. 5 at 752. Dr. Kaufman suggested PT

evaluation and prescribed gabapentin for pain. Id. On 6 February 2018, though recent PT

evaluations were “very encouraging” regarding an improvement in petitioner’s range of motion

and symptoms, Dr. Kaufman noted gabapentin had not relieved petitioner’s pain. 6 February

2018 OHSU Progress Report, Ex. 5 at 763. Soon thereafter, on 10 April 2018, the radiologist

recorded petitioner stopped taking gabapentin due to side effects and was pursuing acupuncture,

and because “pain [was] now dominating her life and adversely [a]ffecting her activities,”

petitioner elected to undergo an embolization—which “is not curative, but performed to control

symptoms.” See 10 April 2018 Office Visit in Interventional Radiology, Ex. 26 at 372–74.

After the first embolization on 2 July 2018, petitioner reported some improvement in symptoms,

but noted pain and weakness in her hand. See 21 August 2018 OHSU Office Visit in

Interventional Radiology, Ex. 26 at 236–38; 2 July 2018 IR Angio Embolization Vascular

Malformation Notes, Ex. 5 at 307–08. Dr. Kaufman noted “[n]o significant change in the

[Vascular Malformation (“VM”)] from the last embolization, which was very limited but

associated with symptomatic improvement,” and would consider repeating the embolization with

a “posterior clavicular approach.” 21 August 2018 OHSU Office Visit in Interventional

Radiology, Ex. 26 at 237–38.

Given the absence of improvements and new factual findings, on 1 October 2018, Dr.

Kaufman performed a second embolization. See 1 October 2018 IR Angio Embolization

Vascular Malformation Notes, Ex. 26 at 147–48. Dr. Kaufman noted petitioner reported her pain

was only “minimally better,” was “frustrated with [the] lack of response,” and was “ta[]king time

off from scho[o]l.” See 23 October 2018 OHSU Office Visit in Interventional Radiology, Ex. 26

at 122. A few months later, in January 2019, the radiologist recorded he did not want to offer

Petitioner a third embolization given the risk of further injury and noted “I think we should

re-image the VM and also re-evaluate her shoulder for potential adhesive capsulitis or other

pathology that would more directly explain the pain and limited ROM. The VM would more

likely cause deep pain in the medial shoulder.” 8 January 2019 OHSU Office Visit in

Interventional Radiology, Ex. 5 at 829.

In Spring 2019, petitioner requested to be assessed for chronic regional pain syndrome

(“CRPS”), and on 3 June 2019, a physiatrist named Dr. Kaul evaluated Petitioner’s left shoulder

and arm to rule out CRPS. 3 June 2019 Dr. Kaul Office Visit, Ex. 5 at 652. Dr. Kaul stated:

On my examination today / review of imaging / review of case, she appears to have

two separate pain generators. One is the shoulder and appears to be (SIRVA)

shoulder injury related to vaccine administration. . . . The other appears to be a

thoracic outlet syndrome / C8 pattern of symptom(s).

Id. The physiatrist requested Dr. Kaufman’s opinion as to whether the VM was “impacting the

brachial plexus.” Id. at 653. On 27 August 2019, petitioner visited Dr. Kaufman to ascertain his

opinion as to whether AVM was a correct diagnosis. After performing a “medical record review,

history, physical exam, and formulation of a treatment plan,” Dr. Kaufman found:

The patient has a temporally clear relationship of onset of pain with TDP injection

in 7/21/15. She has not responded to shoulder surgery or toe embolization

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procedures. The venous malformation located at the superior end of the

subscapularis. This is a congenital lesion that was asymptomatic and only came to

light as a result of work-up for the pain that is directly related to the vaccination.

As she has not had any real response to two embolizations, I do not think that the

VM is the cause of her pain, or that repeat embolization would be fruitful unless

required in order to focus on other diagnoses.

27 August 2019 OHSU Office Visit in Interventional Radiology, Ex. 5 at 803 (emphasis added).

On 2 October 2019, Dr. Kaul noted this assessment by Dr. Kaufman and found petitioner had

CRPS:

Patient does meet criteria for CRPS. Dr. Kaufman @ OHSU does not think the

AVM is source of her symptom(s); rather is congenital that came to light after

shoulder injury related to vaccine administration.

2 October 2019 Dr. Kaul Office Visit, Ex. 5 at 692. Petitioner’s treatment was thereafter put on

hold due to the COVID-19 pandemic, until late 2022, when she continued to report left shoulder

pain radiating into her fingers to a doctor at Hudson Bay Medical Group—petitioner reports she

is unable to work a full-time job. Mot. for Rev. at 5.

II. The Petition and Procedural History Before the Special Master

On 12 April 2021, petitioner filed a petition alleging a SIRVA as a direct result of her

Tdap vaccination. Pet. at 1, ECF No. 1. Petitioner asserted her injury was a “Table Injury”

under 42 C.F.R. § 100.3(a). Id. The petition was assigned to Chief Special Master Corcoran in

September 2022, and the parties engaged in settlement discussions before “reaching an impasse”

in May 2024. SM Dec. at 2; Notice of Assignment, ECF No. 4; Gov’t’s Rule 4(c) Report, ECF

No. 48. In its Rule 4(c) Report opposing compensation, the government noted “[p]etitioner’s

evidence does not support a Table injury[,] petitioner has failed to plead a cause in fact claim or

prove a causal link between her July 21, 2015 Tdap vaccination, and her alleged shoulder pain,”

and requested the Chief Special Master dismiss the case. Gov’t’s Rule 4(c) Report at 26. On 9

October 2024, the Chief Special Master ordered petitioner to “file any additional evidence [it]

wishes to have considered[] and a [b]rief addressing the issues raised in Respondent’s Rule 4(c)

Report,” and “Respondent [to] file any additional evidence [it] wishes to have considered and a

[r]esponse [b]rief within 60 days thereafter.” 9 October 2024 Scheduling Order, ECF No. 49.

Petitioner filed an opening brief on 8 January 2025, see Pet’s Memo., ECF No. 52, and the

government filed a response brief on 10 March 2025, see Gov’t’s Memo., ECF No. 53.

Petitioner did not file a reply. See generally SM Dec. at 2. The Chief Special Master did not

hold an evidentiary hearing or order the parties to file expert reports in the case. See generally

id. at 4.

On 18 July 2025, the Chief Special Master found “Petitioner has not preponderantly

established a Table SIRVA[—]specifically the requirements of an injury limited to the shoulder

and elimination of the potential alternative explanation of a pre-existing vascular malformation

within the shoulder,” and dismissed the petition. SM Dec. at 2. The Chief Special Master also

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found, insofar as petitioner’s SIRVA Table claim fails, petitioner’s claim for a related Off-Table

claim is time-barred. Id. at 15–16.

A. The Special Master’s Analysis of QAI Factors

The Chief Special Master started by discussing the criteria to establish a SIRVA Table

claim. First, the Chief Special Master explained “a SIRVA is compensable if it manifests within

48 hours of the administration of a covered vaccine.” SM Dec. at 3 (citing 42 C.F.R. § 100.3(a)).

Second, after petitioner showed pain manifested within 48 hours of vaccine administration, the

Chief Special Master then reviewed whether petitioner satisfied four QAI:

(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).

Under QAI 1, relating to whether petitioner has a history of pain, inflammation, or

dysfunction of the affected shoulder prior to vaccine administration, the Chief Special Master

found petitioner satisfied this requirement because “Petitioner was not documented to have left

shoulder pain, inflammation or dysfunction prior to her vaccination.” SM Dec. at 11 (citing Ex.

4.); see also 42 C.F.R. § 100.3(c)(10)(i).

Under QAI 2, relating to whether the onset of pain occurred within the time frame, the

Chief Special Master found, given “[m]edical records [were] created as early as nine days

post-vaccination . . . reflect[ing] that Petitioner reported developing new pain involving her

shoulder within a day of vaccination,” petitioner established QAI 2 because “[t]here is no

evidence suggesting an alternative onset for her shoulder pain.” SM Dec. at 11 (citing numerous

exhibits); see also 42 C.F.R. § 100.3(c)(10)(ii).

Under QAI 3, relating to whether petitioner’s symptoms are limited to the shoulder, the

Chief Special Master found petitioner’s record did not demonstrate the pain outside the

vaccinated shoulder was incidental or peripheral to her overall condition. SM Dec. at 12. The

Chief Special Master explained the evidence indicated petitioner had suffered pain radiating

down the arm, reduced range of motion in her elbow, pain and other sensory symptoms

throughout her left arm, and sometimes pain in her left upper back and neck—these non-shoulder

symptoms, according to the Special Master, suggested a complex injury not contemplated by

Table SIRVA claims requiring a causation-in-fact analysis. Id. Specifically, the Chief Special

Master proclaimed the third QAI’s purpose is to “guard against compensating claims involving

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patterns of pain or reduced range of motion indicative of a contributing etiology beyond the

confines of a musculoskeletal injury to the affected shoulder,” and because petitioner’s

“symptoms were less constant and/or less disruptive than the primary complaint of shoulder

pain,” the Chief Special Master found petitioner failed to establish QAI 3. Id. (quoting Valdez v.

Sec’y of Health & Hum. Serv., No. 21-0394V, 2024 WL 1526536 (Fed. Cl. Spec. Master. Feb.

28, 2024) (Corcoran, C.S.M.) (citing Grossman v. Sec’y of Health & Hum. Servs., No. 18-

0013V, 2022 WL 779666, at *15 (Fed. Cl. Spec. Mstr. Feb. 15, 2022) (Horner, S.M.)).

Under QAI 4, which requires “[n]o other condition or abnormality [to be] present that

would explain the patient’s symptoms,” SM Dec. at 4 (citing 42 C.F.R. § 100.3(c)(10)), the Chief

Special Master found “substantial and robust evidence” indicating petitioner’s post-vaccine

symptoms can be explained by the congenital vascular malformation in her shoulder—rather

than from the Tdap vaccine administration. Id. at 12. Considering petitioner bears the burden to

establish all QAIs, the Chief Special Master noted “a SIRVA petitioner cannot evade” proffering

evidence affirmatively showing no other condition or abnormality explains her symptoms. Id. at

12–13.

In evaluating QAI 4, the Chief Special Master assessed the record to determine whether

there is substantial and robust evidence to determine whether “[p]etitioner’s post-vaccination

symptoms could be explained by the congenital vascular malformation located within her

shoulder.” Id. at 13 (citing Rule 4(c) Report at 23–24). In other words, the Chief Special Master

narrowed the scope of the QAI 4 inquiry to whether petitioner ruled out AVM as causing the

shoulder injury. See id. As a threshold matter, the Chief Special Master stated “a treating

medical provider’s opinion is ‘not sacrosanct’” and is only as “trustworthy as the reasonableness

of its suppositions or bases.” Id. As a result, the Chief Special Master evaluated the bases of

petitioner’s medical providers’ opinions in turn. Id. (citing Snyder v. Sec’y of Health & Hum.

Servs., 88 Fed. Cl. 706, 746 n.67 (2009)). First, looking at records from the petitioner’s

intervention radiologist in 2019, the Chief Special Master acknowledged petitioner’s radiologist

asserted the vascular malformation did not explain petitioner’s symptoms—but noted “[the

radiologist’s] rationale for saying so is not particularly clear.” SM Dec. at 14. The Chief Special

Master noted the radiologist merely indicated embolizations were not curative and stated

“Petitioner’s treatment options were limited due to the malformation’s site.” Id. (citing Ex. 5 at

752). The Chief Special Master also highlighted, considering “numerous orthopedic evaluations

and seven MRIs had not detected any specific, alternative musculoskeletal explanation that

would explain the injury,” the radiologist ruling out the AVM “depended heavily on the AVM

being apparently asymptomatic beforehand, and the vaccine’s temporal association with the

onset of shoulder pain”: as a result, the Chief Special Master concluded the temporal association

of the onset of shoulder pain and the record evidence does not sufficiently support the

radiologist’s disclaiming of the vascular malformation as being the cause of petitioner’s shoulder

pain. Id. (emphasis omitted).

Next, the Chief Special Master evaluated the Kaiser physiatrist medical records and

found the physiatrist’s records also do not support petitioner’s position. Id. According to the

Chief Special Master, the physiatrist explained there may be a causal role for the malformation:

given the proximity to the glenohumeral joint and brachial plexus/brachial musculature, the

Chief Special Master interpreted the physiatrist’s records as explaining how petitioner’s

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malformation might explain petitioner’s thoracic outlet syndrome or C8 pattern of symptoms.

Id. (citing Ex. 5 at 652). The physiatrist also opined two separate pain generators may cause

petitioner’s pain, but the Chief Special Master found the physiatrist’s opinion to be “rather

conclusory” because “the physiatrist’s opinion seems influenced by the temporal association

with the vaccine, rather than evidence that diminished the AVM as a confounding factor.” Id.

As a result, the Chief Special Master determined “further explanation would be necessary to rule

out this potential alternative explanation,” related to AVM not being a contributing factor to

petitioner’s shoulder injury. SM Dec. at 14.

Third, the Chief Special Master, after reviewing the OHSU vascular initial evaluation

record, explained how a vascular malformation is congenital and can remain asymptomatic for

years. Id. at 14. According to the Chief Special Master, given the congenital and asymptomatic

nature of AVM and considering veins and clots could be affected by the AVM, petitioner’s

“pain’s onset does not seem to depend on any ‘trigger’ or inciting event.” Id. at 14–15 (citing

Ex. 5 at 731–32).

Last, the Chief Special Master determined “the Kaiser orthopedist and sports medicine

specialists accepted the vascular malformation as likely explaining Petitioner’s symptoms”

because “they did not identify any unrelated musculoskeletal injury” or any evidence implicating

the vaccine directly. Id. at 15.

Given the Chief Special Master’s finding the record contained sufficient support around

the AVM diagnosis and did not contain sufficient support ruling out AVM as being the cause of

petitioner’s shoulder pain, the Chief Special Master determined petitioner failed to establish QAI

4, in addition to QAI 3. Id. at 14. “In light of Petitioner’s inability to establish all QAI

requirements,” the Chief Special Master found petitioner “is not entitled to compensation on its

basis, warranting the Table SIRVA claim’s dismissal.” SM Dec. at 15.

B. The Special Master’s Survey of Petitioner’s Off-Table Claim

After determining petitioner’s SIRVA Table claim failed, the Chief Special Master

evaluated whether petitioner could establish an Off-Table injury, which requires petitioner to

establish the vaccine administration was a cause-in-fact of her injuries. As a threshold matter,

the Chief Special Master noted, if plaintiff was able to satisfy the three elements of the test set

forth in Althen v. Sec’y of Health & Human Services, 418 F.3d 1274 (Fed. Cir. 2005), petitioner

might be able to show a preexisting shoulder injury was exacerbated by vaccine administration.

The Chief Special Master determined, however, petitioner’s Off-Table claim would be

time-barred because “[petitioner] did not file a Vaccine Program claim by the standard statutory

deadline of thirty-six (36) months after the onset of her vaccine injury, e.g., by late July 2018.”

SM Dec. at 15. Not only did petitioner file suit in state court (i.e., the wrong venue), petitioner’s

state court action was also six months past the statutory deadline. Id. at 15–16.

III. Parties’ Arguments

On 14 August 2025, petitioner moved for review of the Special Master’s Decision on

Entitlement. See Mot. for Rev., ECF No. 55. Disputing the Chief Special Master’s finding,

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petitioner contends the Special Master’s decision was “arbitrary, capricious, an abuse of

discretion, and/or otherwise not in accordance with law, and that the findings of fact and

conclusions of law were clearly erroneous.” Mot. for Rev. at 1.

Petitioner identifies four main objections to the Chief Special Master’s Decision on

Entitlement: (1) failing to adequately consider petitioner’s shoulder pain and symptoms of pain

in other areas of the arm as unrelated separate conditions, (2) finding petitioner did not meet QAI

3 was erroneous and a mischaracterization of evidence, (3) applying the incorrect legal standard

when finding petitioner did not meet the criteria for QAI 4 due to AVM being a “potential”

explanation for her symptoms, and (4) failing to give deference to petitioner’s treating physicians

was arbitrary, capricious, or an abuse of discretion. Mot. for Rev. at 7.

The government argues the Chief Special Master “properly considered the records as a

whole, including the relevant medical records” and “thoroughly reviewed the evidence and

concluded the petitioner did not meet her burden of proving the third and fourth QAI.” Gov’t’s

Resp. at 5. The government contends “petitioner did not establish that it was more likely than

not that her pain and reduced range of motion were limited to the shoulder in which the vaccine

was administered (QAI 3), and she did not show that it was more likely than not that no other

condition or abnormality was present that would explain her symptoms (QAI 4).” Id.

IV. Applicable Law

A. The Court’s Standard of Review of a Special Master’s Decision

The National Childhood Vaccine-Injury Compensation Act entrusts this court with

reviewing a Special Master’s decision upon timely motion of either party. See 42 U.S.C.

§ 300aa-12(e)(1)–(2). In reviewing the record of the proceedings before the Special Master, the

Court may: (1) “uphold the findings of fact and conclusions of law of the special master and

sustain the special master’s decision;” (2) “set aside any findings of fact or conclusion of law of

the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law and issue its own findings of fact and conclusions of law;” or (3) “remand

the petition to the special master for further action in accordance with the court’s direction.” Id.

§ 300aa-12(e)(2). “Fact findings are reviewed . . . under the arbitrary and capricious standard;

legal questions under the ‘not in accordance with law’ standard; and discretionary rulings under

the abuse of discretion standard.” Saunders v. Sec’y of Health & Hum. Servs., 25 F.3d 1031,

1033 (Fed. Cir. 1994) (quoting Munn v. Sec’y of Health & Hum. Servs., 970 F.2d 863, 870 n.10

(Fed. Cir. 1992)).

In reviewing a special master’s decision, a court does not “reweigh the factual evidence[,]

assess whether the special master correctly evaluated the evidence[, or] examine the probative

value of the evidence or the credibility of the witnesses[—t]hese are all matters within the

purview of the fact finder.” Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d 1357, 1360 (Fed.

Cir. 2000) (quoting Munn, 970 F.2d at 871). “Reversal is appropriate only when the special

master’s decision is arbitrary, capricious, an abuse of discretion, or not in accordance with the

law.” Snyder v. Sec’y of Health & Hum. Servs., 88 Fed. Cl. 706, 718 (2009). The arbitrary and

capricious standard “is a highly deferential standard of review:” “[i]f the special master has

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considered the relevant evidence of record, drawn plausible inferences and articulated a rational

basis for the decision, reversible error will be extremely difficult to demonstrate.” Hines v. Sec’y

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

B. Qualifications and Aids to Interpretation for Shoulder Injury Related to

Vaccine Administration under the Vaccine Injury Table

“A petitioner can show causation under the Vaccine Act in one of two ways”: (1) “by

showing that she sustained an injury in association with a vaccine listed in the Vaccine Injury

Table[,] . . . [i]n such a case, causation is presumed”; or (2) “if the complained-of injury is not

listed in the Vaccine Injury Table . . . the petitioner may seek compensation by proving causation

in fact.” Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339, 1341–42 (Fed. Cir.

2010) (internal citations omitted); see also Knudsen v. Sec’y of Health & Hum. Servs., 35 F.3d

543, 547 (Fed. Cir. 1994) (noting the Vaccine Act “removes the petitioner’s difficult burden of

proving actual causation by allowing the petitioner to rely on a table[-based] injury and a

presumption of causation”). One of the recognized vaccine injuries under the Table, as of 2017,

is SIRVA. 42 C.F.R. § 100.3(c)(10). According to the Vaccine Table, “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.)[, but is not] a neurological injury.” 42 C.F.R. § 100.3(c)(10). A petitioner must

manifest the following four QAIs to “be considered to have suffered SIRVA”:

(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).

Id.

V. Review of the Special Master’s Decision on Entitlement

In its Motion for Review, petitioner identifies four main objections to the Chief Special

Master’s Decision on Entitlement: (1) failing to adequately consider petitioner’s shoulder pain

and symptoms of pain in other areas of the arm as unrelated separate conditions; (2) finding

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petitioner did not meet QAI 3 was erroneous and a mischaracterization of evidence; (3) applying

the incorrect legal standard when finding petitioner did not meet the criteria for QAI 4 due to

AVM being a “potential” explanation for her symptoms; and (4) failing to give deference to

petitioner’s treating physicians was arbitrary, capricious, or an abuse of discretion. Mot. for Rev.

at 7. At oral argument, when prompted by the Court, petitioner agreed it raises two main

objections, with the other two objections being subsumed by the main two objections: 2 (1)

“whether the record evidence shows, and whether the Chief Special Master sufficiently analyzed

for the QAI 3 analysis, petitioner’s chief complaint and primary pain was shoulder pain from

SIRVA,” Tr. at 14:5–13; and (2) “whether the Chief Special Master correctly evaluated the

evolution of petitioner’s treating physicians’ diagnoses when analyzing QAI 4 and whether the

Chief Special Master discarded those diagnoses in place of his own diagnoses,” Tr. at

14:14–15:2. See also Tr. at 13:20–22 (“[THE COURT: T]he fourth objection is baked into QAI

4. [PETITIONER]: Yes.”). To further clarify, petitioner noted QAIs 3 and 4 “work with each

other and in . . . a bit of a combination[,] overlapp[ing] with the way the evidence can come

together and be focused . . . in order to answer those . . . QAIs.” Tr. at 6:17–7:3; see also Tr. at

14:3–4 (“[PETITIONER:] [A]t the end of the day, [QAI 3 and 4 a]re tied together, yes.”).

The Court first reviews whether the Chief Special Master properly analyzed the record

evidence and provided rationale for the QAI 3 analysis regarding whether petitioner’s primary

pain was shoulder pain from a SIRVA. Then, the Court assesses whether the Chief Special

Master discarded more recent diagnoses from petitioners’ treating physicians, instead relying on

older, preliminary diagnoses from the physicians and the Chief Special Master’s own diagnoses,

as pertinent to QAI 4.

VI. Whether the Chief Special Master Provided Sufficient Rationale under QAI 3

In determining whether the Chief Special Master properly analyzed the record evidence

and provided rationale under QAI 3, the Court starts by reviewing the parties’ arguments and the

applicable legal standard. Then, the Court inspects petitioner’s medical records to assess

whether petitioner’s primary pain could be limited to shoulder pain and range of motion issues

from SIRVA. The Court ends with evaluating whether, in view of the record evidence and the

Decision, the Chief Special Master provided sufficient rationale under QAI 3.

Petitioner argues the Chief Special Master “summarily found, in a one paragraph

discussion, that Petitioner did not meet QAI 3.” Mot. for Rev. at 8. Though petitioner did

experience symptoms in her left arm in addition to her shoulder, petitioner contends the Chief

Special Master “failed to address Petitioner’s argument (and the opinions of her doctors) that

2

Petitioner assented at oral argument it is not objecting to the special master’s finding a non-Table (i.e., causation-

in-fact) version of petitioner’s SIRVA claim is time-barred nor to the lack of evidentiary hearing or expert reports.

Tr. at 15:4–25 (“[THE COURT: A]fter the analyses on page 15 through 16 of his decision, the Chief Special Master

found petitioner cannot bring a non-Table causation-in-fact version of the SIRVA claim because it’s time-barred.

There’s no objection to that, is there? [PETITIONER]: No, Your Honor. THE COURT: So just to be clear,

petitioner is not arguing any non-Table causation-in-fact version of the SIRVA claim. [PETITIONER]: No, Your

Honor. You know, Mrs. Chu has to meet the Table criteria . . . . THE COURT: Also, somewhat related, petitioner

did not raise any issue or objection with the Chief Special Master not seeking expert reports or conducting an

evidentiary hearing. [PETITIONER]: I think that that is -- that is true. That’s not necessarily an objection, but I

don’t know that that is something that wasn’t raised, that we don’t have any contrary or opinion evidence.”).

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Petitioner suffered from two conditions: 1. SIRVA; and 2. Thoracic Outlet Syndrome related to

her AVM.” Id. Petitioner further argues the Chief Special Master “overemphasized the AVM as

the source of all of Petitioner[’]s symptoms and complaints while failing to consider that the

AVM was the cause for the nerve complaints throughout the arm as discussed by [her

radiologist].” Id. at 9. According to other SIRVA Table cases in this court, petitioner asserts

“[a] Petitioner can satisfy the third QAI even if she is ‘treated for other pain, elsewhere’ in the

body that is caused by a different condition.” Id. (quoting Record v. Sec. of Health & Hum.

Servs., 175 Fed. Cl. 673, 680 (2025) (citing Rodgers v. Sec. of Health & Hum. Servs., No.

18-0559V, 2021 WL 4772097, at *8 (Fed. Cl. Sept. 9, 2021))).

Given petitioner’s physiatrist noted two separate diagnoses for petitioner’s pain,

petitioner posits the Chief Special Master misconstrued the medical records by stating Dr. Kaul

concluded “the vaccination caused the left C8 pattern of symptoms . . . [because] Dr. Kaul did

not endorse the left C8 pattern of symptoms.” Mot. for Rev. at 9–10. Petitioner asserts she

“complained of immediate onset of pain in the left shoulder where the injection occurred in

addition to associated symptoms down her arm[, and] the medical records demonstrate that the

pain in her left shoulder never subsided.” Id. at 10. Especially considering the Chief Special

Master’s prior decision noted “claims involving musculoskeletal pain primarily occurring in the

shoulder are valid under the Table even if there are additional allegations of pain extending to

adjacent parts of the body, since the essence of the claim is that a vaccine administered to the

shoulder primarily caused pain there,” petitioner argues “[i]n concluding that Petitioner failed to

satisfy the third QAI because she experienced symptoms throughout her left arm, [t]he Chief

Special Master failed to use the correct legal standard under the third QAI.” Id. at 10–11.

In response, the government argues because petitioner did not allege a cause-in-fact

claim, “the matter before the Chief Special Master was not whether the petitioner’s Tdap

vaccination caused a shoulder injury but whether petitioner preponderantly established the

requirements of a Table SIRVA claim as outlined at 42 C.F.R § 100.3(c)(10) and thus was

entitled to a presumption of causation.” Gov’t’s Resp. at 5. The government asserts, citing to a

prior decision by the Chief Special Master, “the third QAI’s intended purpose is to guard against

compensating claims involving patterns of pain or reduced range of motion indicative of a cause

beyond the confines of a musculoskeletal injury, as outlined in the Table.” Id. at 6 (citing Valdez

v. Sec’y of Health & Hum. Servs., No. 21-0394V, 2024 WL 1526536 (Fed. Cl. Spec. Mstr. Feb.

28, 2024) (Corcoran, C.S.M.). Although “pain found elsewhere in the body caused by a different

condition will not automatically defeat the third QAI,” the government avers “[n]onetheless, in

numerous instances, the Chief Special Master has weighed the relevant evidence and concluded

that other different symptoms or conditions were so intertwined that they could not reasonably be

distinguished or differentiated from the alleged SIRVA.” Id. (citing four previous special master

cases, but not record evidence). Specifically, the government argues the Chief Special Master

“reasoned that petitioner suffered pain radiating down her arm and reduced range of motion in

her elbow within days after the vaccination, and that petitioner thereafter consistently reported

pain and other sensory symptoms throughout her left arm, and sometimes pain in her left upper

back, for a period of years.” Id. (citing SM Dec. at 12). Given “‘[a]t best, these symptoms were

less constant and/or less disruptive than the primary complaint of shoulder pain and that these

symptoms suggested a more complex injury not contemplated by the Table,’” the government

argues “[t]he Chief Special Master drew these reasonable inferences based on the evidence and

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then articulated in his Decision a reasoned explanation for his conclusion that petitioner’s pain

and symptoms outside her shoulder were not incidental or peripheral to her overall condition,

such that they could be distinguished.” Id. (quoting SM Dec. at 12).

As the government argues the Chief Special Master articulated a “reasoned explanation”

in finding petitioner failed to satisfy QAI 3, the Court starts by reviewing the Chief Special

Master’s “reasoned explanation.” On page 12 of the Decision, the Chief Special Master

dedicated just two paragraphs to QAI 3. In the first, the Chief Special Master summarized his

interpretation of QAI 3 and the purpose for the QAI. The Chief Special Master began by

acknowledging petitioner is “somewhat correct . . . that this third QAI criteria . . . is not

automatically defeated by evidence of some degree of symptoms outside of the vaccinated

shoulder.” SM Dec. at 12 (citations omitted). 3 Then, citing to a previous opinion concerning a

SIRVA Table claim, the Chief Special Master stated, “‘claims involving musculoskeletal pain

primarily occurring in the shoulder are valid under the Table even if there are additional

allegations of pain extending to adjacent parts of the body, since the essence of the claim is that a

vaccine administered to the shoulder primarily caused pain there.’” SM Dec. at 12 (quoting

Valdez v. Sec’y of Health & Hum. Servs., No. 21-0394V, 2024 WL 1526536 (Fed. Cl. Spec.

Mstr. Feb. 28, 2024) (Corcoran, C.S.M.) (further citing Cross v. Sec’y of Health & Hum. Servs.,

No. 19-1958V, 2023 WL 120783, at *7 (Fed. Cl. Spec. Mstr. Dec. 2, 2022))). Continuing from

the same opinion, the Chief Special Master noted two legal propositions: (1) “[d]etermining

whether the pain is predominant to the shoulder, or reflects a more systemic injury, is part of the

balancing of evidence performed by special masters[; and (2)] the third QAI’s purpose is to

‘guard against compensating claims involving patterns of pain or reduced range of motion

indicative of a contributing etiology beyond the confines of a musculoskeletal injury to the

affected shoulder.’” Id. (quoting Valdez, 2024 WL 1526536 (Corcoran, C.S.M.) (further citing

Grossman v. Sec’y of Health & Hum. Servs., No. 18-0013V, 2022 WL 779666, at *15 (Fed. Cl.

Spec. Mstr. Feb. 15, 2022) (Horner, S.M.)).

3

The Court recognizes the Chief Special Master found petitioner’s statement about QAI 3 not being automatically

defeated by the presence of injury outside of the shoulder to be “somewhat correct.” SM Dec. at 12. When the

Court asked the government at oral argument why the petitioner is only somewhat correct and what about

petitioner’s statement was somewhat wrong, the government insisted, inter alia, the Chief Special Master ‘s

statement was not incorrect and stated the inverse of “somewhat correct” does not exist. Tr. at 58:8–18 (“[THE

COURT]: So QAI 3, he’s got two paragraphs on QAI 3 analysis and he’s referring to, over here, “Petitioner is

somewhat correct,” the beginning of that first paragraph. The inverse of that, the somewhat wrong, would be the

outcome of this case. Is that correct? [THE GOVERNMENT]: I don’t agree with that statement, Your Honor.

THE COURT: Then what would the inverse of that be? [THE GOVERNMENT]: I don’t think there is an inverse

to that statement.”); Tr. at 59:6–18 ([THE COURT]: So what does it mean to say petitioner is somewhat correct that

the third QAI criteria is not automatically defeated by evidence of some degree of symptoms? What is not correct?

What is incorrect? [THE GOVERNMENT]: That there’s a per se preclusion. THE COURT: But then that’s totally

correct. Is the statement not that it’s totally correct? [THE GOVERNMENT]: So he uses the term “automatically

defeated.” To me, that speaks to whether there’s a per se preclusion. There is no per se preclusion. I acknowledge

that in my brief.”). According to the Chief Special Master’s own decisions, QAI 3 is not automatically defeated by

the presence of an injury outside of the shoulder—in other words, there is no per se preclusion if a petitioner exhibits

symptoms outside of the shoulder, as the government repeatedly mentioned at oral argument. See id. This means,

petitioner is not merely somewhat correct; petitioner is fully correct, which the government was unwilling to admit at

oral argument, despite agreeing with the underlying legal standard in its brief.

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In the second paragraph, the Chief Special Master decided the “record in this case,

however, does not support the conclusion that pain outside of the vaccinated shoulder was

incidental or peripheral to Petitioner’s overall condition, such that it could reasonably be

distinguished.” Id. Instead, according to the Chief Special Master, the record evidence “shows

that Petitioner suffered pain radiating down the arm, and reduced range of motion in her elbow,

within days after her vaccination[, and] continued to suffer pain and other sensory symptoms

throughout her left arm, and sometimes pain in her left upper back and neck, for years.” SM

Dec. at 12 (emphasis in original). In support of this statement, the Chief Special Master inserted

a string see, e.g., cite: “See, e.g., Ex. 5 at 17, 44, 47, 258 – 59, 283, 302 – 03, 309, 319, 347,

731, 404, 546, 652, 695, 731; Ex. 20 at 1; Ex. 21 at 18.” SM Dec. at 12. According to the Chief

Special Master, “these symptoms were less constant and/or less disruptive than the primary

complaint of shoulder pain[, b]ut the non-shoulder symptoms also suggest a more complex injury

of a kind not contemplated by the Table SIRVA listing.” Id. Then, to support this conclusion,

the Chief Special Master cited to petitioner’s medical record where her radiologist found the

vaccination caused both a SIRVA and a left C8 pattern of symptoms. Id. (citing 3 June 2019 Dr.

Kaul Office Visit, Ex. 5 at 652).

A special master’s conclusion survives review when the special master’s analysis

“reflects a careful review of the record evidence” accompanied with a reasoned assessment of the

evidence. White v. Sec’y of Health & Hum. Servs., No. 24-1372, 2025 WL 3703259, at *6 (Fed.

Cir. Aug. 27, 2025), reissued Dec. 22, 2025; Paluck v. Sec’y of Health & Hum. Servs., 786 F.3d

1373, 1380 (Fed. Cir. 2015) (“While review of the factual findings made by a special master is

highly deferential, both the Court of Appeals for the Federal Circuit and the Court of Federal

Claims have a duty to ensure that the special master has properly applied Vaccine Act

evidentiary standards, ‘considered the relevant evidence of record, drawn plausible inferences

and articulated a rational basis for the decision.’” (cleaned up)); see also id. at *2 (noting the

Federal Circuit “appl[ies] the same standard that [the Court of Federal Claims] applies in

reviewing the decision of the special master” (citing Moberly v. Sec’y of Health & Hum. Servs.,

592 F.3d 1315, 1321 (Fed. Cir. 2010))). The special master must also provide an explanation

sufficient to allow the reviewing court to discern “whether [the special master] followed a proper

path” and whether the medical records provide a reasonable basis for the special master’s

conclusions. Stratton v. Sec’y of Health & Hum. Servs., 138 F.4th 1368, 1372 (Fed. Cir. 2025)

(quoting Alacritech, Inc. v. Intel Corp., 966 F.3d 1367, 1371 (Fed. Cir. 2020)). “A naked

conclusion and mere recitation that the opinion is based upon all of the evidence without an

analysis of the evidence in writing is inimical to a rational system of administrative

determination and ultimately inadequate.” Istivan v. United States, 689 F.2d 1034, 1038–39 (Ct.

Cl. 1982) (quoting Beckham v. United States, 183 Ct. Cl. 628, 392 F.2d 619 (1968)) (ellipses

removed).

The Court first reviews whether the Chief Special Master properly articulated a rational

basis to decide the record evidence does “not support the conclusion that pain outside of the

vaccinated shoulder was incidental or peripheral to Petitioner’s overall condition,” then assesses

whether the Chief Special Master considered relevant evidence and articulated a rational basis in

view of the string citation to medical records under QAI 3.

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A. Whether Chief Special Master Articulated Rational Basis To Find Pain

Outside the Shoulder Was Incidental or Peripheral

The Court evaluates whether the Chief Special Master considered the relevant evidence

and articulated a rational basis to support his conclusion regarding QAI 3. QAI 3 asks whether

“[p]ain 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). While the first sentence of the second

paragraph of the Chief Special Master’s QAI 3 discussion notes his inability to reasonably

distinguish whether pain outside the shoulder was incidental or peripheral to petitioner’s

condition, the penultimate sentence of the discussion is accompanied with a citation to the

medical record identifying two separate etiologies causing petitioner’s pain. See SM Dec. at 12

(“[T]he non-shoulder symptoms also suggest a more complex injury of a kind not contemplated

by the Table SIRVA listing. See Ex. 5 at 652 (physiatrist’s endorsement that Petitioner’s

vaccination had caused 1) SIRVA and 2) a left C8 pattern of symptoms, both beginning within

48 hours).”). 4 In the physician’s written assessment, he described two sets of symptoms. First—

regarding “left shoulder pain [that] started 4 years ago[,] immediately after vaccination—the

physician noted:

That pain is anterior and posterior shoulder worse with using shoulder, moving

shoulder; she has significant limitation in left shoulder ROM. She was found to

have cyst which was surgically targeted, then found to have AVM at the same site,

anterior to glenohumeral joint - which has been targeted twice with sclerotherapy.

She has adhesive capsulitis on examination today.

3 June 2019 Dr. Kaul Office Visit, Ex. 5 at 652. The physician, here, expressly noted the left

shoulder pain was related to a “significant limitation in left shoulder ROM,” and diagnosed her

with adhesive capsulitis on that specific visit. Id. For the second set of symptoms, the physician

noted:

left C8 pattern of symptom(s) . . . started within a day of the above symptom(s). In

addition to the interventional treatments above, she’s had extensive conservative

4

The Court notes the paradoxical nature of the government’s arguments. The Chief Special Master found, and the

government argues, petitioner’s medical records do not sufficiently support a Table SIRVA claim. See, e.g., Gov’t’s

Resp. at 5, 15, 16. Concurrently and conversely, when petitioner pointed to evidence her physicians diagnosed her

with SIRVA—the basis of her Table claim—the government contends “there is no such thing as ‘SIRVA’ outside

the Vaccine Injury Table” because “SIRVA itself is not a medically recognized injury . . . it is a ‘medicolegal

term.’” Gov’t’s Resp. at 15 n.8; see also Tr. at 81:1, 11–13 (“SIRVA is not a diagnosis . . . it would be more proper

to diagnose bursitis or tendinosis, an injury.”). Petitioner responded at oral argument “there is medical literature that

mentions SIRVA[, and] it’s permeated into the medical world.” Tr. at 82:14–83:9; see generally Michael Shahbaz,

et al., Shoulder Injury Related to Vaccine Administration (SIRVA): An Occupational Case Report, 67 Workplace

Health & Safety 501, 501–05 (2019) (“We report a case of a health care worker who was diagnosed with SIRVA

soon after receiving an influenza vaccination as part of a mandated workplace seasonal influenza campaign.”);

Chelsey T Wood & Asif M Ilyas, Shoulder Injury Related to Vaccine Administration: Diagnosis and Management,

4 J. of Hand Surgery Global Online 111, 112 (2022) (“Most vaccine injection–related shoulder complaints are self-

limited and resolve within 24 to 48 hours. A small subset of patients go on to experience prolonged and debilitating

shoulder pain, often diagnosed as SIRVA.”) (footnote omitted).

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treatment. She recently saw the Pain Service who referred her here for rule out

CRPS. Her symptom(s) are C8 pattern is constant pain, worse with petting pet with

elbow at trunk and internal rotation/ external rotation. She has temperature and

color changes and allodynia left arm and left shoulder girdle.

Id. There is no mention of shoulder range of motion issues related to the left C8 pattern of

symptoms—the physician instead notes: (1) constant pain in elbow, (2) issues of internal and

external rotation (which is the motion used when throwing a frisbee, for example), (3)

temperature and color changes, and (4) allodynia in her left arm and left shoulder girdle (which

is pain from generally non-painful contact such as clothing and a light breeze). After the

physician’s “examination/review of imaging/and review of case,” the physician concluded:

petitioner “appears to have two separate pain generators. One is the shoulder and appears to be

(SIRVA) shoulder injury related to vaccine administration. . . . The other appears to be a

thoracic outlet syndrome / C8 pattern of symptom(s).” Id. (emphasis in original).

In his Decision, the Chief Special Master noted QAI 3 “is not automatically defeated by

evidence of some degree of symptoms outside of the vaccinated shoulder,” but then concluded:

At best, these symptoms were less constant and/or less disruptive than the primary

complaint of shoulder pain. But the non-shoulder symptoms also suggest a more

complex injury of a kind not contemplated by the Table SIRVA listing.

SM Dec. at 12. The Chief Special Master’s conclusion effectively rules out a petitioner’s

entitlement to a SIRVA Table claim if the petitioner suffered “symptoms outside of the

vaccinated shoulder”—but the QAIs and its preamble do not support this rigid interpretation of

QAI 3. The preamble to the QAIs expressly contemplates “symptoms . . . in[] and around the

underlying bursa of the shoulder resulting in an inflammatory reaction[, and] caused by an

injury to the musculoskeletal structures of the shoulder (e.g.[,] tendons, ligaments, bursae, etc.).”

42 C.F.R. § 100.3. Moreover, when the Department of Health and Human Services sought to

add SIRVA to the Vaccine Table, the Department clarified pain in the neck or back without an

injury to the shoulder would not constitute SIRVA under QAI 3—but did not state pain in the

neck or back precludes a finding of SIRVA if injury to the shoulder is present. See 82 Fed. Reg.

6294, 6296 (Jan. 19, 2017). Further, both parties’ briefing agreed non-shoulder symptoms do not

automatically defeat a finding of SIRVA. See Mot. for Rev. at 10; Gov’t’s Resp. at 10. When

the Court sought to understand the basics of a shoulder injury contemplated by SIRVA, however,

the government disputed even rudimentary human anatomy:

[THE COURT:] [I]f you were to move your shoulder, you agree that your elbow

and your arm also move, correct?

[THE GOVERNMENT]: No.

[THE COURT:] No?

[THE GOVERNMENT]: No.

....

[THE COURT:] My six-year-old likes to sing a song, especially at Halloween[:]

The finger bone’s connected to the hand bone,

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The hand bone’s connected to the arm bone,

The arm bone’s connected to the shoulder bone,

Now shake dem skeleton bones!

[THE GOVERNMENT]: Mm-hmm.

[THE COURT:] You agree with all that?

[THE GOVERNMENT]: Well, I agree that’s a song that kids sing at

Halloween . . . . [T]he pain and symptoms are what we’re trying to address here,

whether they occur in the shoulder or outside the shoulder.

Tr. at 67:18–70:20 5 (emphasis added). With greater understanding of grade school anatomy

basics, petitioner noted the fundamentals of shoulder connection to the rest of the body: “records

[here] . . . show the pain radiated outside of the shoulder . . . [a]nd Valdez itself is [a case] where

the petitioner argued that HHS did not intend to preclude compensation for valid SIRVA claims

if the shoulder pain radiated.” Tr. at 71:16–25; see also Valdez v. Sec’y of Health & Hum.

Servs., No. 21-0394V, 2024 WL 1526536, at *1, *6 (Fed. Cl. Spec. Mstr. Feb. 28, 2024)

(Corcoran, C.S.M.) (“[T]he fact that a claimant reports some radiating pain does not completely

invalidate a Table SIRVA.”); Cross v. Sec’y of Health & Hum. Servs., No. 19-1958V, 2023 WL

120783, at *7 (Fed. Cl. Spec. Mstr. Dec. 2, 2022) (Corcoran, C.S.M.) (“[C]laims involving

musculoskeletal pain primarily occurring in the shoulder are valid under the Table even if there

are additional allegations of pain extending to adjacent parts of the body, since the essence of the

claim is that a vaccine administered to the shoulder primarily caused pain there.”) (emphasis in

original); Rodgers v. Sec’y of Health & Hum. Servs., No. 18-0559V, 2021 WL 4772097, at *8

(Fed. Cl. Spec. Mstr. Sept. 9, 2021) (Corcoran, C.S.M.) (QAI 3 “does not prevent a petitioner

with simultaneous areas of pain due to unrelated conditions from also meeting the Table SIRVA

definition.”). Considering the QAI preamble, the Department’s response to public comment, the

parties’ agreement, and the Chief Special Master’s own prior decisions allow for non-shoulder

symptoms in SIRVA Table claims, the mere presence of non-shoulder symptoms does not

foreclose petitioner’s ability to satisfy QAI 3 where injury to the shoulder is present. Beyond

one conclusory statement, “non-shoulder symptoms . . . suggest a more complex injury,” the

Chief Special Master did not articulate a rational basis for why non-shoulder symptoms preclude

a finding of SIRVA in this case. See SM Dec. at 12. Accordingly, the Chief Special Master’s

conclusion petitioner’s shoulder injury was “not contemplated by the Table SIRVA listing”—

merely because petitioner suffered other non-shoulder symptoms—is arbitrary and capricious,

and contrary to law. 42 U.S.C. § 300aa-12(e)(1)–(2); Paluck v. Sec’y of Health & Hum. Servs.,

786 F.3d 1373, 1380 (Fed. Cir. 2015) (“While review of the factual findings made by a special

5

The Court also asked the government whether petitioner’s injuries explicitly listed in a PT record under

“musculoskeletal” detailing left shoulder tenderness were related to the musculoskeletal structure of the system—the

government said “No.” Compare Tr. at 94:11–16 (“[THE COURT]: Given that the humerus bone is the

bone . . . connecting the shoulder to the elbow, according to my 8th grade skeleton [song] that we looked at, this

description is then related to the musculoskeletal structure of the shoulder, correct? [THE GOVERNMENT]: No.”)

with 30 July 2015 MPAS Notes, Ex. 5 at 17 (noting, under the “Musculoskeletal” section of the “Physical exam,”

“Left shoulder has tenderness over subacromial bursa, deltoid. Tenderness noted at left lateral epicondyle. Tinel

positive at left elbow, negative at wrist. Left shoulder has abduction limited to shoulder height, limited internal

rotation compared to right”). Just as with the question asked at oral argument regarding rudimentary anatomy, the

government also did not agree the records noting results of a PT’s physical examination supported petitioner’s

shoulder symptoms.

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master is highly deferential, both the Court of Appeals for the Federal Circuit and the Court of

Federal Claims have a duty to ensure that the special master has properly applied Vaccine Act

evidentiary standards, ‘considered the relevant evidence of record, drawn plausible inferences

and articulated a rational basis for the decision.’” (cleaned up)).

A plain reading of the physician’s medical record also belies the Chief Special Master’s

finding and the government’s proposition petitioner’s pain and symptoms outside her shoulder

“could not reasonably be distinguished”: the physician not only distinguished between the two

sets of symptoms, but he also diagnosed petitioner with two separate pain generators. Compare

Gov’t’s Resp. at 10–11 (emphasis added) with 3 June 2019 Dr. Kaul Office Visit, Ex. 5 at 652

(noting petitioner “appears to have two separate pain generators. One is the shoulder and

appears to be (SIRVA) shoulder injury related to vaccine administration. . . . The other appears

to be a thoracic outlet syndrome / C8 pattern of symptom(s).”). Though both the Chief Special

Master (and the government) concede some symptoms outside the vaccinated shoulder do not

preclude entitlement under a SIRVA Table Claim, the Chief Special Master did not address

whether petitioner could have suffered SIRVA—as the physician diagnosed—constituting an

injury expressly contemplated by the Table SIRVA injury while also suffering from a separate

and independent left C8 pattern of symptoms (which could potentially require, for example, a

causation-in-fact analysis for an off-Table claim). When pressed at oral argument to “read to

[the Court] where, for QAI 3, the Chief Special Master distinguished between this lack of

separation between SIRVA and C8,” the government narrated: (1) a sentence about a special

master’s role under QAI 3 to guard against compensating claims involving etiologies beyond the

confines of a musculoskeletal injury; and (2) another sentence “in his analysis, [where] he says,

‘At best, these symptoms were less constant or less disruptive.’” Tr. at 86:12–88:10.

Accordingly, the Chief Special Master erred in two ways: (1) the Chief Special Master

summarily stated pain outside of the vaccinated shoulder could not be reasonably distinguished

despite Dr. Kaul differentiating between shoulder pain from SIRVA and non-shoulder pain from

the C8 pattern of symptoms; and (2) in concluding petitioner failed to establish QAI 3 because

her “symptoms also suggest a more complex injury of a kind not contemplated by the Table,” the

Chief Special Master did not articulate a rational basis explaining what injury is contemplated by

the Table and how the distinction drawn by the physician between SIRVA and C8 pattern of

symptoms would fail to satisfy an injury of a kind contemplated by the Table. As the Chief

Special Master and the government concede separate and independent etiologies do not preclude

satisfaction of QAI 3, and because the medical record the Chief Special Master cites in the

Decision describes two separate pain generators distinguishing between her symptoms from

SIRVA and her neuropathy, the Chief Special Master did not “articulate[] a rational basis for the

decision” regarding the two separate pain generators not satisfying QAI 3. 42 U.S.C. § 300aa-

12(e)(2) (permitting this court to set aside a special master’s factual findings or legal conclusions

in place of the court’s own; or remand to the special master for further action); Stratton, 138

F.4th at 1372 (“Given the failure to explain why the evidence in the record was sufficient to

provide a reasonable basis for [petitioner’s] claim, the Chief Special Master’s decision is

inadequate for appellate review.”); Istivan, 689 F.2d at 1038–39 (“‘A naked conclusion and mere

recitation that the opinion is based upon all of the evidence without an analysis of the evidence in

writing is inimical to a rational system of administrative determination and ultimately

inadequate.’” (quoting Beckham, 392 F.2d at 622–23); Paluck, 786 F.3d at 1380; Snyder, 88 Fed.

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Cl. at 718 (“Reversal is appropriate only when the special master’s decision is arbitrary,

capricious, an abuse of discretion, or not in accordance with the law.”) (footnote omitted). To be

clear, the Court is not making a factual finding as to whether petitioner satisfied QAI 3. See

Stratton, 138 F.4th at 1373 (“To be clear, we express no opinion on whether the Chief Special

Master's decision was correct or incorrect.”).

B. Whether the Chief Special Master’s String Citation to Record Evidence is

Sufficient to Show Rational Basis

The Chief Special Master relies on seventeen exhibits in a string cite for the proposition

petitioner suffered pain in her arm, elbow, upper back, and neck—but also uses these seventeen

exhibits to state “at best, these symptoms were less constant and/or less disruptive than the

primary complaint of shoulder pain.” SM Dec. at 12. Having determined in Section VI.A,

supra, the Chief Special Master could have distinguished the symptoms based on the medical

records, the Court now reviews some of cited exhibits to determine whether the Chief Special

Master considered all relevant record evidence and articulated a rational basis in support of his

conclusion petitioner’s pain was not limited to the shoulder.

As a first example, page 17 of Exhibit 5 includes notes from a Physical Exam of

petitioner by a physician’s assistant. 30 July 2015 MPAS Notes, Ex. 5 at 17. In the notes, under

the section labeled “Musculoskeletal,” the physician’s assistant listed numerous issues related to

petitioner’s shoulder:

Musculoskeletal: She exhibits no edema.

Left shoulder has tenderness over subacromial bursa, deltoid. Tenderness noted at

left lateral epicondyle. Tinel positive at left elbow, negative at wrist. Left shoulder

has abduction limited to shoulder height, limited internal rotation compared to right.

Left elbow extension mildly limited compared to right due to discomfort. Passively

shoulder abduction and elbow extension are only minimally limited due to

discomfort. Grip strength equal bilaterally

Ex. 5 at 17 (emphasis omitted). Under the “Assessment” section of the notes, the physician’s

assistant notated (1) “Left Shoulder Pain”; (2) “Ulnar nerve injury, left, initial encounter”; and

(3) “Post-vaccination reaction, initial encounter.” Id. When the Court asked the government

how this citation indicates shoulder injury was not the primary complaint, the government

identifies the second assessment (ulnar nerve injury), but does not mention the first assessment

of “left shoulder pain” or the notes describing the musculoskeletal issues. See Tr. at 99:1–

100:12.

The next document the Chief Special Master cited, Ex. 5 at 44, is a physical therapy

initial questionnaire completed by petitioner on 24 August 2015. In response to a prompt stating

“Please describe how you were injured,” petitioner noted “TDAP injection placed too high,

towards joint. Pain in shoulder for over 1 month.” 24 August 2015 Physical Therapy Initial

Questionnaire, Ex. 5 at 44. The government stressed at oral argument, however, looking at the

diagram underneath the prompt, petitioner circled not only her shoulder, but also her elbow and

hands:

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Id.; see Tr. at 112:1–9. According to the government, “[petitioner’s pain] was clearly not limited

to her shoulder, and she clearly circled . . . her left hand, her back, her trapezius, and, to me, it

looks like she’s also circled her bicep and both back and front of her bicep.” Tr. at 112:16–20.

The Chief Special Master’s citation to this record has little impact on the QAI 3 analysis for two

reasons. First, this medical record is a subjective reporting of petitioner’s pain—not a medical

diagnosis. See 24 August 2015 Physical Therapy Initial Questionnaire, Ex. 5 at 44. Second,

even if petitioner’s subjective impression were relevant, petitioner describes her shoulder pain in

the injury section in the written area—the Chief Special Master did not analyze whether the

notation of shoulder pain or the annotated image satisfies QAI 3, notwithstanding any elbow or

other potentially incidental or peripheral conditions. Id.

The Chief Special Master’s next citation was to Ex. 5 at 47, which is the third page of the

Doctor of Physical Therapy’s “Initial Evaluation.” 24 August 2015 Rebound Orthopedics PT

Initial Eval., Ex. 5 at 47. Looking at the first page of the Initial Evaluation—which the Chief

Special Master did not cite in the QAI 3 analysis—the Doctor of Physical Therapy notes two

medical diagnoses and three treating diagnoses:

24 August 2015 Rebound Orthopedics PT Initial Eval., Ex. 5 at 45. A few notations later, the

Doctor of Physical Therapy notes the “Body Part / Injury” for the visit was “Left shoulder/arm.”

Id. At the next two physical therapy sessions (31 August and 9 September 2015), the Doctor of

Physical Therapy noted the same diagnoses and injury. 31 August 2015 & 9 September 2015

Rebound Orthopedics PT Daily Notes, Ex. 5 at 53–55. At oral argument, the government

contended these medical records are “evidence of pain and reduced range of motion . . .

indicative of a contributing etiology that’s outside the confines of a musculoskeletal injury.” Tr.

at 115:21–116:11. Though the Chief Special Master cited to some (not all) of these records, the

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Chief Special Master did not explain with any level of detail how the medical records, as the

government proposes, “indicat[e] a contributing etiology that’s outside the confines of a

musculoskeletal injury.” Id.; see SM Dec. at 12. Further, neither the Chief Special Master nor

the government at oral argument explained why four of five diagnoses pertaining to shoulder

injury would not suffice to show petitioner’s primary pain was shoulder related. Both the Chief

Special Master and the government appear to rely on the “ulna nerve” injury as destroying the

possibility of establishing QAI 3, but both also agree QAI 3 is “not automatically defeated by

evidence of some degree of symptoms outside of the vaccinated shoulder.” SM Dec. at 12;

Gov’t’s Resp. at 6. Accordingly, given the Chief Special Master did not articulate a rational

basis as to why the majority of diagnoses being linked to petitioner’s shoulder (in view of a

potential ulna nerve injury) defeated her ability to establish QAI 3, the Court remands to the

Chief Special Master for consideration and articulation of a rational basis. Paluck v. Sec’y of

Health & Hum. Servs., 786 F.3d 1373, 1380 (Fed. Cir. 2015).

As another example, at oral argument, the government noted Exhibit 5 at 283 is “a pretty

critical record” “because it’s an MRI impression[, stating] no rotator cuff tear[, and] it’s the first

analysis of this ganglion cyst, which seems to be what most of the treaters thought was causing

petitioner’s symptoms.” Tr. at 118:21–119:3. The government argued this record is “a critical

fact for the [QAI 3] analysis” because “what the vascular abnormality specialists concluded was

that the cyst was essentially pinching nerves and causing the pain, causing a nervous system

disorder, [which is] not a musculoskeletal injury[, but rather] evidence of a nonmusculoskeletal

injury.” Tr. at 120:1–14. Further, given QAI 3 requires pain and reduced range motion to be

limited to the shoulder, the government posits “a nerve injury [is] a situation where [pain is] not

going to be localized to the shoulder.” Tr. at 120:15–20. The Court acknowledges the

government’s post hoc rationalization at oral argument could be “a potential explanation” for

petitioner’s pain—but the Chief Special Master, in his QAI 3 analysis, did not mention an MRI,

cyst, or how the MRI identified a cyst which could cause petitioner’s pain, disqualifying her

from satisfying QAI 3. See Tr. at 120:11–122:11. When asked where the Chief Special Master

provided this potential explanation for petitioner’s pain, the government submitted “I would

point to the fact that he cited to this MRI[ and] he outlined the law or what comes from

Grossman . . . . [he also refers] to Dr. Kaul’s conclusion that the C8 pattern of symptoms was

present. So collectively, those all point to that proposition by any reasonable interpretation.” Tr.

at 121:18–122:11. While the government’s argument may explain why petitioner could

ultimately fail to establish QAI 3, the Chief Special Master’s decision did not include any level

of detail analyzing the MRI, the cyst, the relationship between the cyst and petitioner’s pain, and

an assessment comparing the MRIs with the treating physicians’ later diagnosis differentiating

between a SIRVA and nerve injury.

Considering a special master’s conclusion must “reflect[] a careful review of the record

evidence” accompanied with a reasoned assessment of the evidence, the Court next inspects

Federal Circuit precedent to determine what constitutes a “reasoned assessment.” White, 2025

WL 3703259, at *6. In Stratton v. Secretary of Health and Human Services, the Federal Circuit

found “[t]he Chief Special Master’s decision essentially provides only one sentence of analysis,”

which “failed to explain why the medical records provided a reasonable basis” for his

conclusions, and as a result, the Federal Circuit vacated and remanded to the Chief Special

Master because ‘[it] cannot reasonably discern whether [the Chief Special Master] followed a

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proper path’ in rejecting these concerns and determining that [petitioner] had a reasonable basis

for her petition.” 138 F.4th 1368, 1372 (Fed. Cir. 2025) (quoting Alacritech, Inc. v. Intel Corp.,

966 F.3d 1367, 1371 (Fed. Cir. 2020)). By contrast, in White, the Federal Circuit found the

Chief Special Master conducted a reasoned assessment of the evidence and provided a reasoned

analysis in “f[inding] that ‘[t]he medical records establish that the infection (which first

manifested 10 days before [White’s] neurologic symptoms on December 10, 2017) occurred far

closer in time than vaccination—but within a timeframe that would be reasonable for an

antibody-driven, adaptive immune system autoimmune process to occur.’” White, 2025 WL

3703259, at *5 (citing White v. Sec’y of Health & Hum. Servs., No. 20-1319V, 2023 WL

4204568, at *17 (Fed. Cl. June 2, 2023) (Corcoran, C.S.M.) (“White SM Dec.”). There, given

the Chief Special Master reviewed the evidence and expert reports and explained the course of

injury as related to the flu vaccine’s causality to the autoimmune disorder the petitioner

developed, the Federal Circuit found the special master’s conclusion was not arbitrary and

capricious because it “will not second guess the special master’s reasoned assessment of the

evidence and expert reports.” See White, 2025 WL 3703259, at *5–6; see also White, No. 20-

1319V (Fed. Cl.), SM Dec. at *6–7, 18–19, ECF No. 35; McClendon v. Sec’y of Health & Hum.

Servs., 23 Cl. Ct. 191, 196 (1991) (noting “[factual] findings [for Table injury claims] must

be specific[] and . . . must pointedly reference the evidence relied on to show that the existence

or, as the case may be, the absence of each required element is more probable than not.”);

Goodwin v. Sec’y of Health & Hum. Servs., No. 19-503, 2024 WL 4758470, at *3 (Fed. Cl. Oct.

10, 2024) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983)) (“The special master’s decision does not demonstrate that his conclusions were the

product of reasoned decision making as his decision does not provide enough reasoning to show

the Court that he examined the relevant data, and he did not articulate a satisfactory explanation

for his action including a rational connection between the facts found and the choice made.”)

(cleaned up); Record v. Sec’y of Health & Hum. Servs., 175 Fed. Cl. 673, 680 (2025) (“Where a

special master’s decision does not articulate an explanation that logically connects specific facts

to the terms of the Table, there is not enough for this Court’s review, and remand is

appropriate.”).

The Chief Special Master’s assessment of QAI 3, here, is akin to Stratton. The QAI 3

assessment consisted of a first paragraph with no analysis and a second paragraph with

conclusory sentences and only three sentences connecting record evidence to the legal

standard—one of which relied on a string “see, e.g.” citation. See SM Dec. at 12. The

assessment also did not cite all relevant evidence nor attempt to articulate how the citations

supported the conclusion that petitioner’s symptoms were limited to the shoulder. Although

there is presumption the Chief Special Master reviewed the record (as the government noted at

oral argument), the Chief Special Master did not explain the citations to record evidence or

provide a reasoned assessment of the record evidence in support of the conclusions to allow for

the Court’s review. See McClendon, 23 Cl. Ct. at 196; Goodwin, 2024 WL 4758470, at *3;

Record, 175 Fed. Cl. at 680. For reasons analogous to the Federal Circuit’s opinion in Stratton,

considering the Chief Special Master did not articulate rational basis as to why the medical

records describing shoulder pain did not satisfy QAI 3 (apart from a string citation) and did not

provide a reasoned assessment, nor demonstrate consideration of all relevant evidence—as

mandated by Federal Circuit precedent—the Chief Special Master acted arbitrarily and

capriciously and contravened the law. Stratton, 138 F.4th at 1372; Paluck v. Sec’y of Health &

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Hum. Servs., 786 F.3d 1373, 1380 (Fed. Cir. 2015); White, 2025 WL 3703259, at *6. To be clear

(and further analogous to the Federal Circuit’s notation in Stratton), the Court does not opine on

the petitioner’s medical records or determine whether petitioner meets or does not meet QAI 3—

the Court remands to the Chief Special Master to consider the relevant evidence, make plausible

inferences, and articulate a rational basis for his conclusions with a reasoned explanation for his

factual findings. Id.; Stratton, 138 F.4th at 1372, n.3 (“To be clear, we express no opinion on

whether the Chief Special Master’s decision was correct or incorrect.”); White, 2025 WL

3703259, at *6.

VII. Whether Chief Special Master Attempted to Diagnose Petitioner Notwithstanding

the Opinions of Medical Professionals

The Court next assesses whether the Chief Special Master, under QAI 4, discarded more

recent diagnoses from petitioners’ treating physicians and instead relied on older, preliminary

diagnoses from physicians and his own diagnoses. In doing so, the Court first reviews the

parties’ arguments, the applicable legal standard, and the evolution of treating physicians’

diagnoses from 2019 to 2023. Then, the Court analyzes whether the Chief Special Master

articulated rational basis for relying on old diagnoses from petitioners’ treating physicians before

iterations of tests and procedures as well as the Chief Special Master’s own diagnoses, instead of

diagnoses later in the course of petitioner’s injury.

Petitioner argues the Chief Special Master erred by (1) “applying an incorrect legal

standard in determining that Petitioner did not meet the requirements of QAI 4 by a

preponderance of the evidence in concluding that the AVM was a ‘potential’ alternate cause of

her symptoms,” Mot. for Rev. at 11–12; and (2) “failing to give deference to Petitioner’s treating

providers,” see id. at 14. First, petitioner contends her medical records displayed a “prolonged

and difficult medical journey that began the day Petitioner was vaccinated.” Id. at 11. During

her treatment, although physicians discovered congenital AVM in her shoulder which was

previously asymptomatic, petitioner asserts “physicians ruled out the AVM as the source of her

left shoulder pain and reduced range of motion and diagnosed her to have sustained a SIRVA

injury as a result of the vaccination she received on July 21, 2015.” Id. (citing 3 June 2019 Dr.

Kaul Office Visit, Ex. 5 at 652; 27 August 2019 OHSU Office Visit in Interventional Radiology,

Ex. 5 at 803). Petitioner argues the Chief Special Master does not identify any “competing

medical opinions to conclude [petitioner’s] treating physician[]s [were] wrong in their

assessment that the AVM was not the cause of her left shoulder pain and reduced range of

motion.” Id. at 12. Moreover, petitioner argues, because treatment for the asymptomatic AVM

“failed to reduce the pain and limited range of motion in her shoulder,” “based upon a

preponderance of the evidence, the vaccination of July 21, 2015 is the cause of Petitioner’s

longstanding pain and limited range of motion of her left shoulder.” Id. Petitioner also argues

the Chief Special Master found the AVM only “potentially explain[ed] Petitioner’s injury,” and

because, according to a prior opinion from this court, a “finding that an alternative explanation

for Petitioner’s condition is possible does not respond to the terms of the QAI and thus cannot be

enough to find that the Table criteria are unmet,” the Chief Special Master applied an incorrect

legal standard. Mot. for Rev. at 11 (citing Record v. Sec’y of Health & Hum. Servs., 175 Fed. Cl.

673, 680 (2025)).

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Second, petitioner contends the Chief Special Master failed to defer to the treating

physicians’ diagnoses and “substituted his opinions for the opinions of Petitioner’s expert

medical providers” in finding AVM (rather than the vaccine) was the potential source of

petitioner’s injury. See id. at 12–14. As one example, petitioner identifies “Dr. Matthew Kaul at

Kaiser . . . diagnosed [petitioner] with []SIRVA[] and separately, possible thoracic outlet

syndrome” on 3 June 2019. Id. at 12 (citing 3 June 2019 Dr. Kaul Office Visit, Ex. 5 at 652). As

a second example, petitioner states Dr. Kaufman, a vascular specialist, “ruled out the AVM as

the cause of her left shoulder pain” on 27 August 2019 because “two embolization procedures

failed to reduce or alleviate Petitioner’s symptoms.” Id. at 13. Petitioner proposes “[t]he Chief

Special Master discounted these opinions because they appeared to be influenced by the

temporal relationship between the vaccination and the onset of left shoulder pain,” despite the

record evidence containing “four years of treatment and the ruling out of various conditions,

including the previously a-symptomatic AVM, and the fact that petitioner experienced these

symptoms within a day of the vaccination.” Id. at 12 (first citing SM Dec. at 14; then citing 30

July 2015 MPAS Notes, Ex. 5 at 15). Petitioner also highlights the Chief Special Master “g[ave]

greater weight to the Orthopedist that Petitioner saw in 2016” despite the fact the Orthopedist’s

opinion was written “before [petitioner] saw the vascular specialist and before the embolizations

failed to produce results.” Id. at 13–14 (first citing SM Dec at 15; then citing Ex. 5 at 338–40,

343–44, 597). Petitioner concludes the Federal Circuit mandates special masters to heed treating

physicians’ diagnoses and statements. Mot. for Rev. at 14; see also Paluck v. Sec’y of Health &

Hum. Servs., 786 F.3d 1373, 1385 (Fed. Cir. 2015) (holding a “special master erred in

disregarding contemporaneous statements from [a petitioner’s] treating physicians regarding the

cause of his [injury]”); Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1375 (Fed. Cir.

2009) (explaining “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.”).

The government argues “the Chief Special Master clearly articulated that QAI 4 places an

affirmative burden on petitioner to show that the evidence of an alternative condition is not

meaningful,” Gov’t’s Resp. at 13 (citing Durham v. Sec’y of Health & Hum. Servs., No. 17-

1899, 2023 WL 3196229, at *14 (Fed. Cl. Spec. Mstr. May 2, 2023)), and “that [the government]

is not required to show an alternative cause, but merely that the record contains sufficient

evidence of a competing explanation to ‘muddy a finding that vaccine administration was the

cause,’” id. (citing French v. Sec’y of Health & Hum. Servs., No. 20-9862, 2023 WL 7128178, at

*6 (Fed. Cl. Spec. Mstr. Sept. 11, 2023). The government asserts the Chief Special Master

“considered numerous records, all of which give ample support for petitioner’s AVM diagnosis

as the culprit for her symptoms, thus providing a meaningful competing explanation,” and noted

orthopedists and sports medicine specialists did not identify or implicate any unrelated

musculoskeletal injury.” Id. at 13–14 (citing SM Dec. at 13–15). Despite acknowledging certain

treating physicians did not embrace the AVM diagnosis, the government maintains the Chief

Special Master “weighed the evidence and articulated a rational basis for concluding that

petitioner’s post-vaccination symptoms could, in part, be explained by the AVM.” Id. at 14; SM

Dec. at 11, 14 (stating “that the record evidence did not sufficiently support the radiologist’s

discounting of the malformation because: (1) the radiologist had noted embolization procedures

were not always curative, (2) petitioner’s treatment options (for the AVM) were limited, (3)

other treaters had concluded that an AVM can be congenital and does not depend on any trigger

or inciting event, and (4) the radiologist did not record any physical examination, testing, or

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provide a diagnosis, and further observing that the radiologist did not determine whether the

AVM was compressing nerves, when such determination was the sole purpose of the visit”).

The government asserts “it is not arbitrary or capricious for a special master to weigh physician’s

assessments against each other,” especially when “contrary evidence is present in the record.”

Id. (citing Hibbard v. Sec’y of Health & Hum. Servs., 100 Fed. Cl. 742, 749 (2011), aff’d, 698

F.3d 1355 (Fed. Cir. 2012)). In response to petitioner’s argument the Chief Special Master failed

to give deference to her treating physicians, the government insists “it is clear that the Chief

Special Master weighed the opinions of several medical providers, and he articulated a rational

basis for why he afforded more weight to certain opinions as opposed to others[, and] because

the Chief Special Master’s conclusions were based on plausible inferences, they were neither

arbitrary nor capricious.” Id. at 15.

As petitioner first argues the Chief Special Master applied an incorrect legal standard in

determining petitioner failed to satisfy QAI 4, the Court starts by reviewing relevant precedent.

Under QAI 4, petitioner must establish “[n]o other condition or abnormality is present that would

explain [petitioner’s] symptoms.” 42 C.F.R. § 100.3(c)(10). “In determining whether to award

compensation to a petitioner under the Program, the special master or court shall consider, in

addition to all other relevant medical and scientific evidence contained in the record any

diagnosis, conclusion, [or] medical judgment . . . which is contained in the record regarding the

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

death.” 42 U.S.C. § 300aa-13(b)(1)(A). The Vaccine Act notes, however, “[a]ny such diagnosis,

conclusion, judgment, test result, report, or summary shall not be binding on the special master

or court,” but requires “the special master or court [to] consider the entire record and the course

of the injury.” Id. at § 300aa-13(b)(1)(B).

Although diagnoses are not “binding on the special master” according to the Vaccine Act,

Federal Circuit precedent has emphasized the pertinence of treating medical physicians’

diagnoses. “[M]edical records warrant consideration as trustworthy evidence” because the

records are generally contemporaneous and “contain information supplied to or by health

professionals to facilitate diagnosis and treatment of medical conditions.” Cucuras v. Sec’y of

Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). “With proper treatment hanging in

the balance, accuracy has an extra premium.” Id. “‘[T]reating 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.”’ 6 Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d

1367, 1375 (Fed. Cir. 2009) (quoting Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d

1317, 1326 (Fed. Cir. 2006); see also Paluck v. Sec’y of Health & Hum. Servs., 756 F.3d 1373,

1385 (Fed. Cir. 2015) (noting “the special master erred in disregarding contemporaneous

statements from [petitioner’s] treating physicians regarding the cause of his [vaccine-related

injury]”). “Weighing the persuasiveness of particular evidence often requires a finder of fact to

assess the reliability of testimony, including expert testimony, and [the Federal Circuit] ha[s]

6

When asked at oral argument if the government agreed with Andreu which states “treating physicians are likely in

the best position to evaluate whether the vaccination was the reason for injury,” the government stated “No,” and

“Andreu does not stand for that proposition.” Tr. at 42:22–43:11; see also Tr. at 43:12–16 (“[THE COURT]: So

you disagree with the notion that treating physicians are likely in the best position to evaluate whether the

vaccination was the reason for injury? [THE GOVERNMENT]: Disagree.”).

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made clear that the special masters have that responsibility in Vaccine Act cases.” Moberly v.

Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1325 (Fed. Cir. 2010).

Instead of following Federal Circuit precedent, the Chief Special Master and the

government cite opinions from this court. First, the Chief Special Master and the government

rely on a footnote buried in Snyder—a Court of Federal Claims case briefed prior to Andreu—to

assert a treating medical provider’s opinion is “not sacrosanct.” 7 SM Dec. at 13 (quoting Snyder

v. Sec’y of Health & Hum. Servs., 88 Fed. Cl. 706, 745 n.67 (2009)); Gov’t’s Resp. at 15

(quoting Snyder, 88 Fed. Cl. at 745 n.67). Given three Federal Circuit cases elucidate the

trustworthiness of medical opinions and describe treating physicians as being in the “best

position to evaluate whether the vaccination was the reason for injury,” the persuasive weight of

the footnote in this court’s prior opinion is minimal. See Cucuras, 993 F.2d at 1528; Andreu,

569 F.3d at 1375; Paluck, 756 F.3d at 1385. Second, the Chief Special Master and the

government cite to this court’s opinion in Hibbard v. Secretary of Health and Human Services,

stating “[t]reaters’ views should be weighed against other, contrary evidence also present in the

record[—]including conflicting opinions among such individuals.” SM Dec. at 13 (citing 100

Fed. Cl. 742, 749 (2011)). Hibbard correctly adheres to Federal Circuit precedent which

requires special masters “to assess the reliability of testimony, including expert testimony,”

because Hibbard found the special master’s evaluation was not arbitrary or capricious

considering “[w]ith an extensive set of medical records from nearly twenty different doctors,

many of which [were] inconclusive, the special master focused on the results of objective testing

and the relative persuasiveness of the competing expert witnesses.” Moberly, 592 F.3d at 1325;

Hibbard, 100 Fed. Cl. at 749. Hibbard does not stand for, nor does it cite to binding precedent

regarding, allowing special masters to discard medical diagnoses as competing without

establishing a rational basis for why diagnoses are contrary or to evaluate the suppositions and

bases of medical diagnoses in the absence of expert testimony. See Hibbard, 100 Fed. Cl. at 749.

Notably, the record in Hibbard contained two expert reports, and the special master held two

evidentiary hearings regarding the two experts—only after these expert reports and evidentiary

hearings did the special master weigh the medical opinions. Id. at 746–47; see also Hibbard v.

United States, 698 F.3d 1355, 1368–69 (Fed. Cir. 2012) (noting the special master weighed the

testimony of experts in arriving at his conclusion). Considering Federal Circuit precedent

explicated medical opinions are trustworthy, accurate, and are written by those in the “best

7

In Snyder, this court noted “[a]fter briefing had concluded on petitioners’ motion for review, but prior to oral

argument, the Federal Circuit issued its decision in Andreu, reaffirming its prior holdings that the testimony of

treating physicians is ‘quite probative since 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,

there is nothing in Andreu that mandates that the testimony of a treating physician is sacrosanct—that it must be

accepted in its entirety and cannot be rebutted.” Snyder, 88 Fed. Cl. at 745 n.67. This court explained in the same

footnote “an analysis of Andreu as it relates to the testimony of treating physicians is unnecessary here” because

neither party raised the issue for the court’s review. Id. As application of Andreu was “unnecessary” in Snyder and

was not relevant to the disposition of the case, this court’s statement regarding “testimony of a treating physician

[not being] sacrosanct” is pure dictum. See id.; see also DICTUM, Black’s Law Dictionary (12th ed. 2024) (defining

dictum as “[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision

in the case and therefore not precedential (although it may be considered persuasive)”). Even if the statement was

somehow binding, arguendo, the Chief Special Master and the government do not accurately characterize this

court’s dictum because this statement does not state, as they contend, “a treating medical provider’s opinion is ‘not

sacrosanct’”: this court merely observed “there is nothing in Andreu that mandates that the testimony of a treating

physician is sacrosanct.” Snyder, 88 Fed. Cl. at 745 n.67.

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position” to evaluate petitioner’s injuries, a special master’s conclusion survives review when the

conclusion heeds medical opinions or is predicated on expert testimony (i.e., expert reports or

testimony at a hearing) which undermines medical opinions and renders the medical opinions as

untrustworthy or unpersuasive. Cucuras, 993 F.2d at 1528; Andreu, 569 F.3d at 1375; Moberly,

592 F.3d at 1325.

Having evaluated binding precedent establishing medical records as trustworthy absent

contrary expert testimony, the Court next determines whether the Chief Special Master assessed

medical records in accordance with Federal Circuit precedent. Given the Vaccine Act requires

consideration of the “course of injury,” the Court finds it valuable to walk through the evolution

of medical diagnoses in petitioner’s medical records. See 42 U.S.C. § 100aa-13(b)(1)(B).

After petitioner received the Tdap vaccination on 21 July 2015 at The Vancouver Clinic,

see 21 July 2015 Visit Summary at The Vancouver Clinic, Ex. 5 at 4–5, petitioner revisited the

Clinic nine days later, when they diagnosed her with “Left shoulder pain,” “ulnar nerve injury,

left, initial encounter,” and “Post-vaccination reaction, initial encounter,” 30 July 2015 MPAS

Progress Notes, Ex. 5 at 15–17. The Clinic referred petitioner to PT, see id., where a doctor of

physical therapy diagnosed petitioner with “[p]ain in shoulder,” and “[i]njury of ulna nerve,” see

24 August 2015 PT Initial Eval., Ex. 5 at 45. On 2 October 2015, petitioner underwent an MRI

for “[u]nspecified polyarthropathy or polyarthritis, shoulder region.” 2 October 2015 MRI

Report, Ex. 5 at 37. A doctor found the MRI showed “no rotator cuff tear,” a “large ganglion

associated with subscapular recess of glenohumeral joint,” and “posterior glenoid labrochondral

irregularity of uncertain significance [but n]o anterior labral tear or bony evidence of previous

dislocation.” Id. at 37. On 15 October 2015, a different doctor—Dr. Ragsdale of Rebound

Orthopedics—was “consult[ed] on [petitioner] regarding her left shoulder pain and weakness.”

15 October 2015 Dr. Ragsdale Analysis, Ex. 5 at 40, 42. After looking at the MRI, the doctor

found the MRI “showed a significant loculated appearing fluid in the subcoracoid bursa

consistent with a large ganglion,” and his impression was “this would be considered a result of

her Buford complex and possible 1 way valve effect into the subcoracoid bursa,” but noted

petitioner “really had no symptoms at all until she had the injection on 07/21/2015.” Id. at 42.

In diagnosing the issue with petitioner’s subcoracoid bursa, the doctor stated:

The most common problem after injections is irritating the axillary nerve as it

comes around through the deltoid. It certainly would be a cause for weakness or

abduction. I am trying to put all the components of this together[,] though, with the

ganglion and the weakness. There is certainly some possibility that she had

irritation of her suprascapular nerve going to the supraspinatus, also causing

irritation in the bursa with the fluid secondary to this. There is of course the

possibility that she irritated her axillary nerve from the injection, but that she had

had a preceding ganglion in the subcoracoid bursa.

Id. In these impressions, Dr. Ragsdale notes multiple possibilities for petitioner’s injuries—one

of which being a preceding ganglion. Id. Dr. Ragsdale referred petitioner to a different doctor

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for “nerve conductions/EMG’s,” 8 which “showed all of the nerves in the upper extremity were

conducting normally and that her EMG’s for suprasupinatus, infraspinatus, and deltoid were all

normal.” Id. at 43 (emphasis added). Dr. Ragsdale then sent petitioner back to PT, see id., who

then diagnosed petitioner with “Axillary nerve palsy” and “Subcoracoid bursitis of left

shoulder.” 20 November 2015 Rebound Orthopedics PT Daily Note, Ex. 5 at 96. At this point,

doctors were still investigating the reason behind petitioner’s injuries and identified some

possible diagnoses.

In December 2015, an orthopedist named Dr. DaSilva examined petitioner (and noted she

was a “previous patient of Dr. Ragsdale”). 16 December 2015 Dr. DaSilva Visit Summary, Ex.

5 at 107. Dr. DaSilva “reviewed her imaging including her MRI which reveals the cyst,” and

because “[t]he cyst is in the region of the subscapularis,” the doctor “th[ought] it would be

reasonable to continue with physical therapy at this time and get a repeat MRI approximately 3

months from the original MRI.” Id. A second MRI on 8 January 2016 showed “similar findings

from her previous MRI in October[:] Rotator cuff is preserved without any tearing. There is a

similar multilobulated soft tissue ganglion measuring approximately 6.4 x 2.5 x 1.9 cm within

subscap recess. No obvious intraarticular labral injury. Long head of the biceps is maintained

and in anatomic position. No obvious cartilage defects.” 14 January 2016 Physician Assistant

Notes, Ex. 5 at 115. Then, on 22 February 2016, petitioner underwent a “diagnostic

anthroscopy,” where doctors noted the biceps tendon, rotator cuff, and superior labrum were all

intact. 22 February 2016 S.W. WA Reg. Surgery Center Operation Notes, Ex. 5 at 129. The

doctors “were able to visualize cystic fluid decompressed” during the procedure, and at a visit a

few weeks later, petitioner showed “well-preserved passive range of motion of the shoulder.” Id.

This means, after petitioner received the vaccination, consulted several doctors, and underwent

two MRIs and a diagnostic anthroscopy, the doctors suspected a ganglion cyst could be a

potential diagnosis.

Doctors continued to believe petitioner had a ganglion cyst throughout 2016 but also

considered whether petitioner had a labral tear—a diagnosis they previously ruled out. See 22

December 2016 Dr. Weiganowicz Progress Notes, Ex. 5 at 338. To determine whether petitioner

had a labral tear, a doctor considered recommending “arthroscopic surgery and possible repair.”

Id. In early 2017, an “MRI for left shoulder arthrogram w[ith] contrast” showed “no visible

labral tear,” but the doctor noted “[a]s the architecture and signal of the abnormality is not

typical of a classic ganglion cyst, post IV contrast 3 plane fat-suppressed Tl imaging

recommended to rule out solid tumor.” 9 January 2017 MRI for Left Shoulder Arthrogram With

Contrast Notes, Ex. 5 at 371–72 (emphasis added). A few months later, in March, petitioner

underwent a “MRI left shoulder [without and with] contrast,” which showed an “[a]t least

predominantly solid heterogeneously enhancing mass associated with the superior margin of the

subscapularis muscle is unchanged in size compared to prior studies.” 6 March 2017 MRI Left

Shoulder WO/W Contrast Notes, Ex. 5 at 372–73. As a result, the doctor opined “[t]his lesion

likely represents a benign or low-grade mass and could be a myxoma or lymphatic or possibly

8

For convenience, EMG is an shorthand for electromyography which “measures muscle response or electrical

activity in response to a nerve’s stimulation of the muscle[, and] is used to help detect neuromuscular

abnormalities.” ELECTROMYOGRAPHY (EMG), Johns Hopkins Medicine,

https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/electromyography-emg.

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vascular malformation (enhancement is similar to the adjacent vasculature).” Id. at 373. 9 This

was the first instance a doctor mentioned “vascular malformation” as a potential diagnosis.

At a follow-up appointment for the most recent MRI, on 29 March 2017, the doctor

thought “[t]he mass may be consistent with a lymphatic vascular malformation[ but] does not

have the appearance of a ganglion cyst.” 29 March 2017 Dr. Wirganowicz Progress Notes, Ex. 5

at 348. To determine whether vascular malformation was the correct diagnosis, the doctor

“recommended she initially undergo a needle biopsy to confirm the presence of a[ ]vascular

malformation and if this diagnosis is confirmed a referral to interventional radiology would be

made for consideration of sclerotherapy injections.” Id. Petitioner then visited the Vascular

Anomalies Clinic at OHSU, where resident/fellow Dr. Dhossche noted in a preliminary

evaluation petitioner has “a vascular malformation of the left shoulder which is causing

significant morbidity with daily pain and interference of daily activities, consistent with venous

malformation.” 8 August 2017 OHSU Medical Report, Ex. 5 at 732–33 (also noting an attending

physician concurred with the resident/fellow’s conclusion). The doctor also noted “Dr Kaufman

[(the Chair of the Department of Interventional Radiology)] performed ultrasound in clinic,

symptoms of nerve pain seem unusual given location of this malformation and so referral for

consultation with neurology to help sort this out was placed.” Id. at 732; 9 January 2018 Dr.

Kaufman Progress Notes, Ex. 5 at 752. A few months later, in January 2018, Dr. Kaufman

assessed petitioner as a “female with low-flow (likely venous as it contains phleboliths)

malformation left shoulder that does not appear to involve the neurovascular structures by

imaging but is associated with local pain, decreased ROM, and tingling in the fingers.” 9

January 2018 Dr. Kaufman Progress Notes, Ex. 5 at 752.

With the working diagnosis of venous malformation, on 10 April 2018, Dr. Kaufman

suggested an embolization, which “is not curative, but performed to control symptoms.” 10

April 2018 Office Visit in Interventional Radiology, Ex. 26 at 373. OHSU then performed the

embolization on 2 July 2018. See 24 July 2018 OHSU Office Visit in Interventional Radiology,

Ex. 26 at 306–09. In August 2018, Dr. Kaufman noted “[n]o significant change in the VM from

the last embolization, which was very limited but associated with symptomatic improvement.”

21 August 2018 OHSU Office Visit in Interventional Radiology, Ex. 26 at 237–38. Given

petitioner returned with “pain symptoms left shoulder, decreased ROM, and weakness L[eft]

hand,” among others, and because petitioner “would like to proceed with another treatment,” Dr.

Kaufman ordered a “repeat embolization post Neurology eval at Ka[is]er.” Id. After the

neurological evaluation resulted in no new findings, see Ex. 5 at 542, Dr. Kaufman conducted

another embolization on 5 October 2018. See 1 October 2018 IR Angio Embolization Vascular

Malformation Notes, Ex. 26 at 146–47.

Dr. Kaufman then started to question the accuracy of the venous malformation diagnosis

in early 2019. After the second embolization, on 8 January 2019, Dr. Kaufman’s assessment

called the venous malformation diagnosis into question given other diagnoses would more

directly explain petitioner’s pain:

9

The Chief Special Master noted only “vascular malformation” in the Decision, despite the medical record

hypothesizing the lesion could be a number of diagnoses, including “benign or low-grade mass and [] a myxoma or

lymphatic or possibly vascular malformation.” Compare 6 March 2017 MRI Left Shoulder WO/W Contrast Notes,

Ex. 5 at 373 with SM Dec. at 6.

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Disappointing result from embolization x 2. At this point I think we should re-

image the VM and also re-evaluate her shoulder for potential adhesive capsulitis or

other pathology that would more directly explain the pain and limited ROM. The

VM would more likely cause deep pain in the medial shoulder. I am reluctant to

try another embolization at this time as more aggressive treatment will increase the

risk of neurovascular bundle injury.

8 January 2019 OHSU Office Visit in Interventional Radiology, Ex. 5 at 829. Despite

embolizations being associated with symptomatic improvement, petitioner reported on 15 March

2019 “her second left shoulder VM embolization [had] no improvement in symptoms.” 15

March 2019 PT Eval., Ex. 5 at 599. In June 2019, “patient’s main symptom [was] Left sided

shoulder and arm pain,” and was referred to Dr. Kaul, a physiatrist, to “rule out CRPS.” 3 June

2019 Dr. Kaul Office Visit, Ex. 5 at 652. At this visit, Dr. Kaul diagnosed her with “two

separate pain generators.” Id. First, petitioner had left shoulder pain for four years and was

“found to have cyst . . . then found to have AVM at the same site . . . [and] had adhesive

capsulitis” at that visit. Id. Consequently, Dr. Kaul’s first diagnosis was “[petitioner] appears to

be (SIRVA) shoulder injury related to vaccine administration.” Id. Petitioner’s second diagnosis

“appears to be a thoracic outlet syndrome / C8 pattern of symptoms[, and her] AVM is just in

front of the glenohumeral joint and appears to potentially impact the brachial plexus / brachial

vasculature.” Id. Given there are other explanations for petitioner’s symptoms, Dr. Kaul did not

diagnose her with CRPS at the 5 June visit. Id. On a subsequent visit, Dr. Kaul recorded two

“Assessment / Recommendations:”

1) Adhesive capsulitis.

Better with lido to glenohumeral joint. Consider glenohumeral joint injection with

corticosteroid.

shoulder MRI was negative for glenohumeral joint/ labral pathology

2) AVM , anterior to glenohumeral joint. has been targeted twice with

sclerotherapy. ? If it’s proximity to the brachial plexus is causing some of the

symptoms.

7 August 2019 Dr. Kaul Office Visit, Ex. 5 at 686–87. 10

10

The government admits the Chief Special Master previously awarded compensation to other petitioners who were

diagnosed with adhesive capsulitis but disagrees adhesive capsulitis would constitute SIRVA. Tr. at 74:13–75:24

(“[THE COURT:] [T]he government agrees that adhesive capsulitis would constitute SIRVA? [THE

GOVERNMENT]: No, absolutely not, Your Honor. . . . Adhesive capsulitis is a tricky one, Your Honor, because

it’s not a very definitive diagnosis. It’s basically frozen shoulder. So essentially, you could have frozen -- I’m

going to get some water, Your Honor, I apologize. THE COURT: Yep. [THE GOVERNMENT]: You could have

adhesive capsulitis and it not be a musculoskeletal injury. You could have adhesive capsulitis and it was a

musculoskeletal injury. So that’s a tricky, tricky sort of thing there. . . . [THE COURT:] My question is, can

adhesive capsulitis satisfy meeting a SIRVA Table claim? [THE GOVERNMENT]: Well, the diagnosis doesn’t

really come into play in the factors as much. I think there are decisions where the Chief has held adhesive capsulitis

was evidence of a musculoskeletal injury in some instances.” ). See also, e.g., Reed v. Sec’y of Health & Hum.

Servs., No. 19-0448V, 2022 WL 1027115, at *1 (Fed. Cl. Spec. Mstr. Mar. 2, 2022) (noting petitioner filed a

SIRVA Table claim alleging “he suffered adhesive capsulitis that was caused-in-fact by a Tdap vaccine,” and the

government stipulated to settle the case and award compensation); McDonald v. Sec’y of Health & Hum. Servs., No.

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Given Dr. Kaul could not rule out AVM, he referred petitioner back to Dr. Kaufman, who

continued to question the viability of venous malformation being the correct diagnosis: on 27

August 2019, Dr. Kaufman, after performing two embolizations, noted petitioner was a “23 year

female with complex L[eft] shoulder pain following vaccination (SIRVA),” whose “working

diagnoses include SIRVA, adhesive capuslitis, and thoracic outlet syndrome involving C8.” 27

August 2019 OHSU Office Visit in Interventional Radiology, Ex. 5 at 803. Dr. Kaufman said

petitioner “has not responded to shoulder surgery or toe embolization procedures,” and “[a]s she

has not had any real response to two embolization, I do not think that the VM [(i.e., venous

malformation)] is the cause of her pain, or that repeat embolization would be fruitful unless

required in order to focus on other diagnoses.” Id. After receiving Dr. Kaufman’s report, on 2

October 2019, Dr. Kaul stated “[petitioner] does meet criteria for CRPS. Dr. Kaufman @ OHSU

does not think the AVM is source of her symptom(s); rather is congenital that came to light after

shoulder injury related to vaccine administration.” 2 October 2019 Dr. Kaul Office Visit, Ex. 5

at 692. This means, the doctor who monitored, performed embolizations on, and evaluated

petitioner for more than 1.5 years—and the Chair of the Department of Interventional

Radiology—“did not think that the VM” explained petitioner’s symptoms, and Dr. Kaul—the

doctor who was referred by petitioner’s physician—relied on the radiologist’s conclusion in

evaluating the course of petitioner’s injury. 3 June 2019 Dr. Kaul Office Visit, Ex. 5 at 652; 2

October 2019 Dr. Kaul Progress Notes, Ex. 5 at 692; 27 August 2019 OHSU Office Visit in

Interventional Radiology, Ex. 5 at 803; cf. 42 C.F.R. § 100.3(c)(10) (“No other condition or

abnormality is present that would explain the patient’s symptoms.”); 42 U.S.C. § 300aa-

13(b)(1)(B) (“[T]he special master or court [to] consider the entire record and the course of the

injury.”).

Having reviewed the evolution of medical diagnoses and the “course of injury,” the

Court considers whether the Chief Special Master considered all relevant evidence, drew

plausible inferences, and articulated a rational basis for his conclusion “the medical record

evidence preponderates in favor of the vascular malformation as potentially explaining

Petitioner’s injury.” SM Dec. at 15 (emphasis added); Paluck v. Sec’y of Health & Hum. Servs.,

19-0855V, 2022 WL 624048, at *1 (Fed. Cl. Spec. Mstr. Jan. 26, 2022) (noting petitioner filed a SIRVA Table

claim alleging “she suffered right shoulder adhesive capsulitis as a result of an influenza [] vaccine,” and the

government stipulated to settle the case and award compensation); Marley v. Sec’y of Health & Hum. Servs., No. 14-

1159V, 2015 WL 1915565, at *1 (Fed. Cl. Spec. Mstr. Apr. 3, 2015) (noting petitioner filed a Table claim alleging

“he suffered adhesive capsulitis and/or a right shoulder injury that was caused-in-fact by his Hepatitis A, and [Tdap]

vaccinations,” and the government stipulated to settle the case and award compensation). The government asserts

adhesive capsulitis would not support a SIRVA when a petitioner has a labral tear. Tr. at 76:6–19. Given

petitioner’s medical opinions here disclaimed a labral tear and considering the government concedes adhesive

capsulitis has previously satisfied SIRVA Table claims, the Court notes the Chief Special Master may consider

whether petitioner’s treating physicians diagnosing petitioner with adhesive capsulitis (in addition and distinct from

a C8 line of symptoms or an etiology related to a vascular malformation) satisfy SIRVA. See, e.g., 2 October 2015

MRI Report, Ex. 5 at 37 (noting no labral tear); 9 January 2017 MRI for Left Shoulder Arthrogram With Contrast

Notes, Ex. 5 at 371–72 (noting an “MRI for left shoulder arthrogram w[ith] contrast” showed “no visible labral

tear); 3 June 2019 Dr. Kaul Office Visit, Ex. 5 at 652; 7 August 2019 Dr. Kaul Office Visit, Ex. 5 at 686–87. The

Court also highlights Dr. Kaul’s two medical opinions finding two separate pain generators mirror each other, with

SIRVA substituted for adhesive capsulitis: on 3 June 2019, Dr. Kaul diagnosed petitioner with “SIRVA” and

“thoracic outlet syndrome / C8 pattern of symptoms[ related to ] AVM, and, on 7 August 2019, he diagnosed

petitioner with “adhesive capsulitis” and “AVM.” 3 June 2019 Dr. Kaul Office Visit, Ex. 5 at 652; 7 August 2019

Dr. Kaul Office Visit, Ex. 5 at 686–87.

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786 F.3d 1373, 1380 (Fed. Cir. 2015). Although “the OHSU interventional radiologist wrote

that Petitioner’s vascular malformation did not explain her symptoms,” the Chief Special Master

stated the radiologist’s “rationale for saying so is not particularly clear” and “the radiologist’s

disclaiming of the malformation is not sufficiently supported by record evidence to give it great

weight.” SM Dec. at 14–15. The Chief Special Master instead concluded “it is relevant that the

Kaiser orthopedist and sports medicine specialists accepted the vascular malformation as likely

explaining Petitioner’s symptoms.” Id.

The Chief Special Master “cloak[s]” the failure to presume medical records as accurate

“in the guise of a credibility determination” without expert opinion. Andreu v. Sec’y of Health &

Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009) (“While considerable deference must be

accorded to the credibility determinations of special masters, this does not mean that a special

master can cloak the application of an erroneous legal standard in the guise of a credibility

determination, and thereby shield it from appellate review.”) (internal citations omitted);

Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1325 (Fed. Cir. 2010); SM Dec. at 3

(“Contemporaneous medical records are presumed to be accurate.”) (internal citations omitted).

While acknowledging Dr. Kaufman contemporaneously “wrote that [p]etitioner’s vascular

malformation did not explain her symptoms,” the Chief Special Master doubted the bases for Dr.

Kaufman’s conclusion. SM Dec. at 14. For example, the Chief Special Master stated

embolizations would not be curative and Dr. Kaufman did not want to perform a third

embolization—but Dr. Kaufman noted embolizations are “associated with symptomatic

improvement” in AVM patients, which did not happen here. Compare SM Dec. at 14

(“Regarding the lack of response to two embolizations, the radiologist had previously warned

that such procedures were not curative, and he was not willing to perform a third embolization

because of the risks of vascular or nerve injury.”) (internal citation omitted) with 21 August 2018

OHSU Office Visit in Interventional Radiology, Ex. 26 at 237–38 (“[n]o significant change in

the VM from the last embolization, which was very limited but associated with symptomatic

improvement”) (emphasis added); see also 27 August 2019 OHSU Office Visit in Interventional

Radiology, Ex. 5 at 803. As another example, the Chief Special Master noted Dr. Kaufman “did

not acknowledge that numerous orthopedic evaluations and seven MRIs had not detected any

specific, alternative musculoskeletal explanation that would explain the injury”—but many of

these evaluations served as the precursor to petitioner being referred to Dr. Kaufman for his

assessments and embolizations, and Dr. Kaufman does cite to MRIs in his clinic notes when

assessing whether petitioner’s pain is neurological. SM Dec. at 14; 3 April 2019 Telephone

Encounter in Interventional Radiology, Ex. 5 at 814–15 (comparing 3 March 2017 MRI with 5

February 2019 MRI); see also 27 August 2019 Office Visit in Interventional Radiology, Ex. 5 at

803 (Dr. Kaufman acknowledging embolizations, EGD, EMG, and arthroscopy in his progress

notes). In fact, Dr. Kaufman ordered an MRI on 8 January 2019, and referred petitioner to

“Orthopedics and Rehabilitation” because “22 year female with persistent L shoulder pain [did]

not respond[] to embolization of venous malformation[, and p]atient has limited ROM not

consistent with the malformation.” 8 January 2019 Office Visit in Interventional Radiology, Ex.

5 at 830–31 (emphasis added). As a last example, the Chief Special Master asserted Dr.

Kaufman’s “‘ruling out’ of the AVM also depended heavily on the AVM being apparently

asymptomatic beforehand, and the vaccine’s temporal association with the onset of shoulder

pain”—but analogous to the Chief Special Master noting “[Dr. Kaufman’s] rationale for saying

so is not particularly clear,” neither was the Chief Special Master’s rationale for disregarding

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new medical diagnoses for older diagnoses. SM Dec. at 14. Moreover, other doctors referred

petitioner to Dr. Kaufman for the purpose of evaluating petitioner’s potential vascular

malformation, meaning Dr. Kaufman is “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.”

Andreu, 569 F.3d at 1375. While Chief Special Masters are tasked with evaluating credibility of

expert testimony, neither the Chief Special Master nor the government identified any binding

precedent encouraging special masters to disagree with medical doctors without contrary expert

opinion. Especially considering these contemporaneous medical records are for “proper

treatment hanging in the balance[ meaning] accuracy has an extra premium” and because the

records “warrant consideration as trustworthy evidence,” the Chief Special Master erred by

failing to “draw[] plausible inferences[] and articulate a rational basis” for disregarding medical

conclusions from a specialist tasked to evaluate whether petitioner had venous malformation.

Cucuras, 993 F.2d at 1528; Paluck, 786 F.3d at 1380.

The Chief Special Master also disagreed with the Kaiser physiatrist and did not review

the course of injury in petitioner’s medical records. While the Chief Special Master cited to the

physiatrist’s medical record on page 652 of Exhibit 5—where the physiatrist did opine AVM

“appears to potentially impact the brachial” region—the Chief Special Master did not articulate

any rationale to reject the same physiatrist’s re-evaluation of petitioner’s medical records after

Dr. Kaufman ruled out AVM on page 692 of Exhibit 5. Compare SM Dec. at 14 with Ex. 5 at

692. Despite Dr. Kaufman and Dr. Kaul noting procedures intended to improve petitioner’s

symptoms if a diagnosis of AVM were accurate, the Chief Special Master found “the

physiatrist’s opinion seems influenced by the temporal association with the vaccine, rather than

evidence that diminished the AVM as a confounding factor.” SM Dec. at 14. As another

example of failing to consider all relevant evidence, the Chief Special Master found CRPS “was

ruled out by the Kaiser physiatrist in 2019.” SM Dec. at 15 n.17. On the same page discussed

immediately above—page 692 of Exhibit 5—Dr. Kaul expressly found “Patient does meet

criteria for CRPS.” Ex. 5 at 692 (emphasis added); see also Tr. at 141:8–21 (“[THE COURT]:

So to confirm, on page 692, Dr. Kaul is summarizing the current diagnoses of petitioner coming

into the visit after Dr. Kaufman. And that is what clarifies that petitioner does meet criteria for

CRPS, and then Dr. Kaufman is the one who has removed the AVM diagnosis. [THE

GOVERNMENT]: I don’t agree with that statement, Your Honor. I would characterize these

records as nothing more than a repeat of what the interventional radiologist had concluded, and

the Chief Special Master addressed that piece of evidence. THE COURT: Isn’t that what I said?

It’s Dr. Kaufman[,] the radiologist. [THE GOVERNMENT]: Correct.”); Tr. at 145:7–147:15

(“[THE GOVERNMENT]: There was a conclusion that she didn’t have CRPS, right? [The

Chief Special Master] had already made that conclusion, correct? I mean, I’m not trying to ask

the questions. I just -- I’m getting -- that was already concluded. . . . [PETITIONER]: I think

this record shows that Dr. Kaul has changed his mind on the diagnosis of CRPS. THE COURT:

Yeah. Response, [government]? [THE GOVERNMENT]: It does say, Patient does not meet

criteria for CRPS. I agree that that’s what the record states. [PETITIONER]: It says it does

meet it. [THE GOVERNMENT]: Or, excuse me, does meet the criteria for CRPS. And I would

point that that would actually speak to multiple symptoms. That’s what complex regional pain

syndrome is. . . . [PETITIONER]: Dr. Kaul previously had stated that Mrs. Chu could not meet

the criteria of CRPS because she had an alternate source or potential source of her pain. After

going to see Dr. Kaufman, Dr. Kaufman said the AVM was not the source of her symptoms. I

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think this record reflects that Dr. Kaul has now said she meets the criteria for CRPS because the

one thing that was holding up that -- meeting that criteria has now been removed. THE COURT:

[Response from counsel for the government]? [THE GOVERNMENT]: I don’t interpret the

record that way, Your Honor. THE COURT: How do you interpret it? [THE GOVERNMENT]:

Again, I think he’s just noting Dr. Kaufman’s conclusion. He does appear to say that patient

does meet the criteria for complex regional pain syndrome.”). Moreover, the Chief Special

Master noted “[f]urther explanation would be necessary to rule out this potential alternative

explanation.” SM Dec. at 14. While both parties agree “evidence of a concurrent condition or

abnormality does not per se preclude a Table SIRVA claim (or the ability to establish the fourth

QAI criterion),” the Chief Special Master did not discuss how the potential alternative

explanation of AVM foreclosed petitioner’s Table SIRVA claim. Gov’t’s Resp. at 13 (internal

citations omitted); see also Mot. for Rev. at 11 (internal citations omitted). Considering the

Chief Special Master did not demonstrate consideration of all relevant evidence or cite or discuss

the subsequent medical opinion by Dr. Kaul on page 692 of Exhibit 5, or articulate a rational

basis for why AVM foreclosed petitioner’s Table SIRVA despite the parties agreeing a

concurrent condition does not per se preclude petitioner’s claim, the Chief Special Master acted

arbitrarily and capriciously. Paluck, 786 F.3d at 1380.

Finally, the Chief Special Master assigned weight to these medical opinions based on the

opinions being “competing,” without explaining how the opinions were “competing.” See SM

Dec. at 13. Specifically, the Chief Special Master compared medical opinions from the Kaiser

orthopedist and sports medicine specialists in 2016, against medical opinions from Dr. Kaufman

and Dr. Kaul three years later. See id. at 13–15. The Vaccine Act acknowledges petitioner’s

injuries and its associated medical diagnoses undergo a “course of injury,” meaning diagnoses

and medical theories change over time. 42 U.S.C. § 300aa-13(b)(1)(B). The Chief Special

Master, here, ignored this change of diagnoses over time, preferring instead to select preliminary

opinions in lieu of later opinions. As one example, the Chief Special Master noted “[t]he OHSU

vascular anomaly clinic’s initial evaluation record . . . further cuts against Petitioner,” because

the record “explains the expected natural history of a vascular malformation,” which could

remain asymptomatic for years. 11 SM Dec. at 14 (internal citations omitted). Dr. Kaufman’s

2019 medical conclusion, however, was the result of more than a year of treatment at OHSU. By

ignoring Dr. Kaufman’s 2019 medical conclusion, the Chief Special Master contravened the

Vaccine Act’s requirement to consider the “course of injury.” Further, given “course of injury”

indicates an evolution of medical diagnoses and considering the medical diagnoses evolved over

11

The Court notes the Chief Special Master opined the OHSU’s clinic “cuts against Petitioner, under 42 C.F.R.

§ 100.3(c)(10)(iii)”—which is QAI 3. SM Dec. at 14 (emphasis added). The Chief Special Master cited but did not

explain this record in his string citation relating to his discussion of QAI 3—insofar as the Chief Special Master

intended to analyze these records under QAI 3 and QAI 4, the Chief Special Master may do so on remand. See

supra Section VI. Second, the Chief Special Master compared petitioner’s vascular malformation to “calficic

tendinosis[—] another condition that has foreclosed several past Table SIRVA claims.” SM Dec. at 15 n.16.

Neither the Chief Special Master, the government, nor petitioner have identified any record evidence mentioning or

supporting this comparison. The province of this court and the Office of Special Masters is to consider “evidence

contained in the record.” 42 U.S.C. § 300aa-13(b)(1)(A) (“In determining whether to award compensation to a

petitioner under the Program, the special master or court shall consider, in addition to all other relevant medical and

scientific evidence contained in the record any diagnosis, conclusion, [or] medical judgment . . . which is contained

in the record regarding the nature, causation, and aggravation of the petitioner’s illness, disability, injury, condition,

or death.”) (emphasis added).

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time from, for example, ulnar nerve injury to ganglion cyst, the Chief Special Master failed to

articulate rational basis for treating the physicians’ medical opinions as contrary to each other. 12

Paluck v. Sec’y of Health & Hum. Servs., 786 F.3d 1373, 1380 (Fed. Cir. 2015).

Accordingly, the Chief Special Master disagreed with contemporaneous medical records

penned by those in the “best position” to evaluate petitioner’s injuries, opined on the accuracy of

medical diagnoses without analyzing whether they were competing and without expert

testimony, and arrived at a conclusion disclaimed by Dr. Kaufman (and relied on by Dr. Kaul)

before the filing of this protest. The Court, like in Section VI supra, does not make a factual

finding related to whether petitioner satisfies QAI 4 nor does it instruct the Chief Special Master

to require expert testimony. Instead, the Court remands to the Chief Special Master to determine

whether the medical records were competing (which also includes determining whether expert

testimony would assist in evaluating the trustworthiness and persuasiveness of the medical

records and their suppositions and bases); and to assess whether petitioner’s medical records,

when analyzed in accordance with Federal Circuit precedent, establish QAI 4. Hines v. Sec’y of

Health & Hum. Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991); Paluck v. Sec’y of Health & Hum.

Servs., 786 F.3d 1373, 1380 (Fed. Cir. 2015) (“While review of the factual findings made by a

special master is highly deferential, both the Court of Appeals for the Federal Circuit and the

Court of Federal Claims have a duty to ensure that the special master has properly applied

Vaccine Act evidentiary standards, ‘considered the relevant evidence of record, drawn plausible

inferences and articulated a rational basis for the decision.’” (cleaned up)).

VIII. Whether Special Masters are Tasked to “Guard Against Compensation”

The Court concludes by evaluating the province of the Office of Special Masters and this

court for SIRVA Table Claims in view of the Vaccine Act (and amendments thereto) and Federal

Circuit precedent to determine whether the Vaccine Act tasks special masters with “guard[ing]

against compensation” for Table SIRVA claims. In his Decision, the Chief Special Master

12

The Federal Circuit “has unambiguously explained that special masters are expected to consider the credibility of

expert witnesses in evaluating petitions for compensation under the Vaccine Act.” Porter v. Sec’y of Health & Hum.

Servs., 663 F.3d 1242, 1250 (Fed. Cir. 2011). “The fact-finder has broad discretion in determining credibility

because he saw the witnesses and heard the testimony.” Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570,

1575 (Fed. Cir. 1993) (citing Griessenauer v. Dep’t of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985)). While binding

precedent grants special masters the role of weighing the persuasiveness of opinion testimony, here, the Chief

Special Master did not entertain expert opinions (indicating there may be no basis for analyzing the credibility of

opinions). Suppose the parties proffered expert reports describing the medical records: then, the Chief Special

Master is at liberty to assign weight based on the credibility of the experts. Id. To help elucidate which party’s

expert was more reliable, the Chief Special Master could also welcome expert testimony at a hearing. While special

masters are graced with discretion to determine the procedures for their vaccine cases (i.e., choosing to hold a

hearing, postponing Rule 4(c) reports, etc.), insofar as special masters wish to make credibility determinations on the

suppositions or bases of treating physicians’ diagnoses (or nitpick the results of a procedure), they should consider

allowing the parties to proffer expert opinions so that the special master can make credibility determinations. In

other vaccine cases where “the medical evidence was not definitive, the special master relied heavily on expert

medical testimony.” Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010).

Although the majority of instances requiring expert opinion testimony are causation-in-fact cases, considering

Andreu requires a presumption of accuracy for medical records, in Table cases, special masters should consider

deferring to the medical records, or solicit expert testimony if the medical records are not definitive. See id.;

Andreu, 569 F.3d at 1375.

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declares the purpose of one of the Qualifications and Aids to Interpretation “is to ‘guard against

compensating claims involving patterns of pain or reduced range of motion indicative of a

contributing etiology beyond the confines of a musculoskeletal injury to the affected shoulder.’”

SM Dec. at 12 (quoting Valdez v. Sec’y of Health & Hum. Servs., No. 21-0394V, 2024 WL

1526536 (Fed. Cl. Spec. Mstr. Feb. 28, 2024) (citing Grossman 13 v. Sec’y of Health & Hum.

Servs., No. 18-0013V, 2022 WL 779666, at *15 (Fed. Cl. Spec. Mstr. Feb. 15, 2022)) (emphasis

added). The government agrees with the Chief Special Master, noting “it is well established that

the third QAI’s purpose is to guard against compensating claims.” Gov’t’s Resp. at 10

(emphasis added). At oral argument, the government contended prior opinions from this court

support the Chief Special Master’s “guard against compensating claims” role, but when pressed

further, the government could not identify binding precedent or statutory support to substantiate

its claim. See generally Tr. at 25:3–36:25. In determining whether the CSM is tasked with

“guard[ing] against compensating claims,” the Court starts by reviewing the procedures detailed

in the Vaccine Act to the Office of Special Masters and this court as well as the differences

between table claims and off-table claims, and concludes by determining whether “guard[ing]

against compensation” exhibits legal analysis contrary to the Vaccine Act and precedent.

The Vaccine Act is instructive in describing the procedure of a vaccine case. Under 42

U.S.C. § 300aa-12(a), “[t]he United States Court of Federal Claims and the United States Court

of Federal Claims special masters shall, in accordance with this section, have jurisdiction over

proceedings to determine if a petitioner under section 300aa–11 of this title is entitled to

compensation under the Program and the amount of such compensation.” After a petitioner files

“a petition for compensation under the Program for a vaccine-related injury,” this Court’s clerk

“[i]mmediately forward[s] the filed petition to the chief special master for assignment to a

special master.” See 42 U.S.C. § 300aa-11(a)(1), (c); § 300aa-12(d)(1). Unlike the rigorous and

formalistic nature of federal court litigation, the Vaccine Act mandates the rules for special

master proceedings, inter alia, “shall[] provide for a less-adversarial, 14 expeditious, and

13

The Court notes, although this case is titled Grossmann—with two “n”s—upon review of the special master’s

decision and the petition in that case, petitioner’s last name is spelled Grossman—with only one “n.” See

Grossman, 2022 WL 779666, at *1 (“On January 2, 2018, petitioner, Susan Grossman, filed a petition . . . . ”)

(emphasis added); see also Pet. for Vaccine Comp. – SIRVA (Table Injury), id., ECF No. 1 (“Petitioner, Susan

Grossman, by and through her undersigned counsel, hereby requests compensation under the National Vaccine

Injury Compensation Program . . . .”) (emphasis added).

14

Despite the Vaccine Act requiring less adversity in proceedings, the government endeavored to oppose many

facets of petitioner’s case—even those having little impact on the resolution of petitions. See, e.g., supra n.10. For

example, at oral argument, the government disagreed with the plain language of a medical record documented by

petitioner’s radiologist stating he conducted a physical exam: on page 11 of the Decision, the Chief Special Master,

citing to Dr. Kaufman’s notes from petitioner’s visit on 27 August 2019 on page 803 of Exhibit 5, stated the purpose

of the visit to the radiologist “was to evaluate whether the vascular malformation was compressing nerves – but he

did not record any physical examination, testing, direct answer to that question, or diagnosis of his own.” SM Dec.

at 11 (citing 27 August 2019 OHSU Office Visit in Interventional Radiology, Ex. 5 at 803). On the immediately

succeeding page (containing the same header as page 803), the radiologist noted: “I performed a medical record

review, history, physical exam, and formulation of a treatment plan.” Ex. 5 at 804. In a prolonged colloquy, when

the Court asked if the government “would agree that [the doctor] did review, record, and perform a physical exam,”

the government responded “I don’t think so . . . I don’t think he performed a medical exam or review. It would have

been noted on 803 as the Chief cited.” Tr. at 134:13–139:9. The government’s position is, because the Chief

Special Master cited page 803, “[t]he record that we need to be focusing on is on 803,” and any material on page

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informal proceeding for the resolution of petitions, [and] include flexible and informal standards

of admissibility of evidence.” 15 Id. § 300aa-12(d)(2) (emphasis added). “It is well-established

that the Vaccine Act is a ‘pro-claimant regime’ meant to allow injured individuals a fair and fast

path to compensation.” J.A.C. v. Sec’y of Health & Hum. Servs., No. 25-1751, 2025 WL

3749714, at *1 (Fed. Cir. Dec 29, 2025). As one example of the “pro-claimant” nature of the

Vaccine Act, the Federal Circuit noted Congress intended “close calls regarding causation [to be]

resolved in favor of the injured claimants.” Althen v. Sec’y of Health and Hum. Servs., 418 F.3d

1274, 1280 (Fed. Cir. 2005). 16 The Vaccine Act further emphasizes special masters must hasten

when deciding whether petitioner is entitled to compensation: “[t]he decision of the special

master shall[] include findings of fact and conclusions of law, and[] be issued as expeditiously as

804 “is a mistake” and “carryover from an earlier record” given “when [a doctor] sign[s] [a] document, that’s the

end of the record. . . . It’s very common for there to be language that continues in the records, but usually the

signature denotes the end of the current record.” Id. Although the Court is not making a factual finding here, the

Court emphasizes the Federal Circuit’s precedent stating medical records warrant consideration as trustworthy

evidence and the Vaccine Act requiring “less-adversarial” proceedings. Cucuras, 993 F.2d at 1528; 42 U.S.C. §

300aa-12(d)(2).

15

Commentators routinely highlight the need for vaccine proceedings to be “less-adversarial, expeditious, and

informal.” For example, professor Renée Gentry of the Vaccine Injury Litigation Clinic at the George Washington

University School of Law testified before the House Oversight Committee, Select Subcommittee on the Coronavirus

Pandemic on 21 March 2024, “Congress intended that the [Vaccine Injury Compensation Program (“VICP”)]

provide individuals (petitioners) a swift, flexible, and non-adversarial alternative to the often costly and lengthy

traditional civil tort litigation.” Assessing America’s Vaccine Safety Systems, Part 2 Before the House Oversight

and Accountability Select Subcommittee on the Coronavirus Pandemic, 118th Congress (Statement of Renee J.

Gentry, Professorial Lecturer, The George Washington University), available at https://oversight.house.gov/wp-

content/uploads/2024/03/Gentry-Testimony.pdf. Gentry also noted compensation for vaccine injury is deducted

from a ~$4 billion fund, paid through a vaccine manufacturer excise tax. Id.

Some commentators even express distaste for adversarialism and sluggishness permeating today’s vaccine

proceedings despite statutory directives. See, e.g., Nora F. Engstrom, A Dose of Reality for Specialized Courts:

Lessons from the VICP, 163 Penn L. Rev. 1631, 1711–13 (2015) (“[T]he VICP . . . aim[s] to quell the adversarialism

of dispute resolution. But, when assessing why the VICP has struggled, it seems obvious that one final reason is that

adversarialism has crept back in. . . . [A]s early as 1989, Congress expressed regret that, despite this statutory

directive, ‘all participants ha[d], to some degree, maintained their traditional adversarial litigation postures.”

(quoting H.R. REP. NO. 101-247, at 512 (1989)); Peter H. Meyers, Fixing the Flaws in the Federal Vaccine Injury

Compensation Program, 63 Admin. L. Rev. 785, 851 (2011) (noting the Vaccine program “is no longer the quick,

informal, and less adversarial program that Congress intended it to be.”). “Of petitions filed between 1999 and

March 31, 2014, the Program’s average adjudication time clocked in at about five-and-a-half years[, and] it takes

more time, on average, to process claims within the Program than it does to process claims, through judgment,

within the traditional tort system.” Nora F. Engstrom, supra, at 1685–86 (emphasis in original) (citations omitted).

Congress itself noted the VICP devolving into an adversarial process indistinguishable from civil lawsuits. See H.R.

REP NO. 106-977, at 12–13 (2000) (“As the DOJ has pursued aggressive defenses in compensation cases,

entitlement and compensation determinations have been perceived by some petitioners as being inappropriately

adversarial in nature.”).

16

The Chief Special Master discussed whether petitioner could file an off-Table claim under the three-element test

set forth in Althen—but appears to misstate Althen and/or the facts of the present case. Specifically, the Chief

Special Master wrote “Petitioner might be able to show that a preexisting shoulder injury was exacerbated by the flu

vaccine (assuming that he could meet the three elements of the test set forth in Althen. . .).” SM Dec. at 15

(emphasis added). Ms. Chu, here, did not receive the flu vaccine: she received the Tdap vaccine. Id. at 1.

Similarly, in Althen, petitioner Ms. Althen received the tetanus toxoid and hepatitis A vaccines. Althen v. Sec’y of

Health & Hum. Servs., 418 F.3d 1274, 1276 (Fed. Cir. 2005). Both parties agreed at oral argument the Chief

Special Master’s statement here is an “error.” Tr. at 21:6–12.

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practicable.” Id. § 300aa-12(d)(3)(A) (emphasis added). After a special master renders a

decision, if a party moves for review, this court has jurisdiction to undertake the review. Id.; Id.

§ 300aa-12(e).

For vaccine injuries listed on the Table, 17 “symptoms and injuries associated with each

listed vaccine and a timeframe for each symptom or injury[:] Congress has thus determined that

if a petitioner can establish that she received a listed vaccine and experienced such symptoms or

injuries within the specified timeframes, she has met her prima facie burden to prove that the

vaccine caused her injuries.” de Bazan v. Sec’y of Health & Hum. Servs., 539 F.3d 1347, 1351

(Fed. Cir. 2008) (citing 42 U.S.C. § 300aa–14); see also Grant v. Sec’y of Health & Hum. Servs.,

956 F.2d 1144, 1146–47 (Fed. Cir. 1992) (noting a Table claim is satisfied when a petitioner

demonstrates the alleged injury met criteria listed in the Table). “Given the clarity of the issues

and the ease with which such evidence may generally be adduced, however, it is unsurprising

that the Guidelines note that ‘[m]ost Table cases are quickly resolved, in keeping with

congressional intent that vaccine injured persons be compensated quickly, easily, and with

generosity.” MATTHEW H. SOLOMSON, COURT OF FEDERAL CLAIMS: JURISDICTION, PRACTICE,

AND PROCEDURE § 18-24 (2016) (quoting COURT OF FED. CLAIMS, OFFICE OF SPECIAL MASTERS,

GUIDELINES FOR PRACTICE UNDER THE NATIONAL VACCINE INJURY COMPENSATION PROGRAM, at

48 (revised 3 March 2025)). 18 Though Congress enacted the Vaccine Act in the 1980s and

included a Vaccine Injury Table, it empowered the Secretary of Health and Human Services to

promulgate regulations to modify the Vaccine Injury Table by “add[ing] to, or delet[ing] from,

the list of injuries, disabilities, illnesses, conditions, and deaths for which compensation may be

provided” after conducting a public notice and comment period. 42 U.S.C. § 300aa-14(c)(3). In

2017, after providing a 180-day comment period and holding a public hearing on amending the

Table, the Secretary revised the Vaccine Injury Table to include, inter alia, Qualifications and

Aids to Interpretations for SIRVA. See 82 Fed. Reg. 6294, 6299 (Jan. 19, 2017); 42 C.F.R.

§ 100.3(a), (c)(10). The Table included a preamble and the four QAIs discussed supra to

analyze whether a petitioner’s SIRVA Table claim was meritorious:

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

as shoulder pain and limited range of motion occurring after the administration of

a vaccine intended for intramuscular administration in the upper arm. These

symptoms are thought to occur as a result of unintended injection of vaccine antigen

or trauma from the needle into and around the underlying bursa of the shoulder

resulting in an inflammatory reaction. SIRVA is caused by an injury to the

musculoskeletal structures of the shoulder (e.g. tendons, ligaments, bursae, etc.).

SIRVA is not a neurological injury and abnormalities on neurological examination

or nerve conduction studies (NCS) and/or electromyographic (EMG) studies would

not support SIRVA as a diagnosis (even if the condition causing the neurological

17

The Court further notes the instant case was referred to the Special Processing Unit (“SPU”), which “is designed

to increase the Vaccine Program’s ability to provide for the expedited and informal resolution of claims that appear

reasonably likely to settle at the outset of the matter’s filing.” COURT OF FED. CLAIMS, OFFICE OF SPECIAL

MASTERS, GUIDELINES FOR PRACTICE UNDER THE NATIONAL VACCINE INJURY COMPENSATION PROGRAM, at 37

(revised 3 March 2025).

18

Internal citation updated to reflect amended version of document.

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

SIRVA if such recipient manifests all of the following:

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

to intramuscular vaccine administration that would explain the alleged signs,

symptoms, examination findings, and/or diagnostic studies occurring after vaccine

injection;

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

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

intramuscular vaccine was administered; and

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

symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial neuritis,

mononeuropathies, or any other neuropathy).

42 C.F.R. § 100.3(c)(10). Based on de Bazan, the QAI are akin to a checklist—if a petitioner

establishes she received a vaccine listed on the Table and experienced symptoms contemplated

by the Table, petitioner need only “check off” each QAI to receive compensation. See 539 F.3d

at 1351. In contrast to off-Table claims, where petitioner “is not afforded a presumption of

causation and thus must prove causation-in-fact,” Table claims offer a much simpler process and

propose a more expeditious route to compensation when compared to off-Table claims. See id.

Considering the alleviated procedural requirements of vaccine claims and the

presumption of causation when the QAI are met, the Court evaluates whether the Chief Special

Master’s concept of “guard[ing] against compensation” is contrary to law, first by determining

from where the concept derived and then by assessing whether the concept aligns with settled

precedent. To trace back the origins of the “guard against compensating claims” language, the

Court reviews the progeny of cases cited by the government and the Office of Special Masters.

The Decision here quoted Valdez v. Sec’y of Health & Hum. Servs., No. 21-0394V, 2024 WL

1526536 (Fed. Cl. Spec. Mstr. Feb. 28, 2024) (“Valdez”), which cited Grossman v. Sec’y of

Health & Hum. Servs., No. 18-0013V, 2022 WL 779666, at *15 (Fed. Cl. Spec. Mstr. Feb. 15,

2022)) (“Grossman”). SM Dec. at 12. The Chief Special Master authored Valdez, and Special

Master Horner wrote Grossman. Valdez, 2024 WL 1526536; Grossman, 2022 WL 779666. In

Grossman, Special Master Horner, citing to Werning v. Secretary of Health and Human Services,

wrote “it is clear that the gravamen of this requirement is to guard against compensating claims

involving patterns of pain or reduced range of motion indicative of a contributing etiology

beyond the confines of a musculoskeletal injury to the affected shoulder.” Grossman, 2022 WL

779666, at *15 (citing Werning v. Sec’y of Health & Hum. Servs., No. 18-0267V, 2020 WL

5051154, at *10 (Fed. Cl. Spec. Mstr. July 27, 2020)). Werning, although noting “[petitioner]

did initially mention pain travelling to her hand shortly after vaccination and once again after her

shoulder surgery,” found petitioner established QAI 3—but did not mention “guard[ing] against

compensating claims,” nor analyzed binding authority to opine on the intent behind QAI 3, as

suggested by Grossman. Werning, 2020 WL 5051154, at *10.

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Considering Grossman invented “this requirement [of] guard[ing] against compensating

claims” under QAI 3 and because the Chief Special Master relied on this requirement in the

present action, the Court reviews whether the requirement is supported by precedent or the

Table. Grossman starts the QAI 3 discussion by analyzing the government’s response to a public

comment, reproduced in full below:

Comment: A commenter suggested that shoulder injury related to vaccine

administration (SIRVA) as defined in the QAI is too restrictive because the

recipient’s pain and reduced range of motion must be limited to the shoulder in

which the intramuscular vaccine was administered. The commenter stated that such

language was an artificial and unnecessary qualification, and expressed concern

that recipients who have other symptoms, such as shoulder pain radiating to the

neck or upper back, will not have the benefits of a Table injury. The commenter

suggested that the QAI be expanded to include the shoulder and parts of the body

attributed to that injury.

Response: SIRVA is a musculoskeletal condition caused by injection of a vaccine

intended for intramuscular administration into the shoulder, and, as its name

suggests, the condition is localized to the shoulder in which the vaccine was

administered. In other words, pain in the neck or back without an injury to the

shoulder in which an individual received a vaccine would not be considered

SIRVA. Shoulder injuries that are not caused by injection occur frequently in the

population. Thus, it is important to have a definition of SIRVA that is clearly

associated with vaccine injection. The portion of the QAI limiting the pain and

reduced range of motion to the shoulder in which the vaccine was administered is

necessary to accurately reflect the vaccine-associated condition.

Grossman, 2022 WL 779666, at *15 (citing 82 Fed. Reg. 6294, 6296). Based on this Federal

Register Response, the special master disagreed with petitioner’s position “shoulder pain with

accompanying neck pain necessarily falls under the SIRVA rubric in all events.” Id. The special

master further noted the Response “reveals that the third SIRVA criterion is intended to ensure

that SIRVA claims are limited to instances in which ‘the condition is localized to the shoulder in

which the vaccine was administered.’” Id. (quoting 82 Fed. Reg. 6294, 6296). Nothing in the

Response demonstrates QAI 3 is intended to foreclose compensation for petitioners who have

two (or more) separate conditions. Specifically, the Response notes “the condition is localized to

the shoulder,” which means so long as petitioner has one condition localized to the shoulder,

SIRVA is satisfied. See 82 Fed. Reg. 6294, 6296. While the Response highlights “pain in the

neck or back without an injury to the shoulder” plainly does not constitute SIRVA, this statement

does not indicate a petitioner experiencing pain in the shoulder in addition to pain elsewhere is

foreclosed from entitlement because the pain is not limited only to the

This text is long and has been trimmed here. Open the source document for the complete record.