French v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20-862V

Filed: February 26, 2026

Special Master Horner

ARTHUR FRENCH,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Michael G. McLaren, Black, McLaren, Jones, Ryland & Griffee, P.C., Memphis, TN, for

petitioner.

Tyler King, U.S. Department of Justice, Washington, DC, for respondent.

RULING ON ENTITLEMENT1

On July 15, 2020, petitioner filed a petition under the National Childhood Vaccine

Injury Act (“Vaccine Act”), 42 U.S.C. § 300aa-10, et seq. (2012).2 Petitioner alleged that

he suffered either a Table Injury of “SIRVA,” i.e., a shoulder injury related to vaccine

administration, or a shoulder injury caused-in-fact by his vaccination following receipt of

an influenza (“flu”) vaccine on October 26, 2019. (ECF No. 1.) For the reasons set

forth below, I conclude that petitioner is entitled to compensation.

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

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

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

Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic

Government Services). This means the document will be available to anyone with access to the

internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact

medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.

If, upon review, I agree that the identified material fits within this definition, I will redact such material from

public access.

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

§ 300aa-10, et seq.

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I. Applicable Statutory Scheme

Under the National Vaccine Injury Compensation Program, compensation

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

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

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

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

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

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

link between the vaccination and the injury.

In some cases, the petitioner may simply demonstrate the occurrence of what

has been called a “Table Injury.” That is, it may be shown that the vaccine recipient

suffered an injury of the type enumerated in the “Vaccine Injury Table,” corresponding to

the vaccination in question, within an applicable time period following the vaccination

also specified in the Table. If so, the Table Injury is presumed to have been caused by

the vaccination, and the petitioner is automatically entitled to compensation, unless it is

affirmatively shown that the injury was caused by some factor other than the

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

The Vaccine Injury Table lists a Shoulder Injury Related to Vaccine

Administration or “SIRVA” as a compensable injury if it occurs within 48 hours of

vaccine administration. § 300aa-14(a), amended by, 42 C.F.R. § 100.3. In this case,

however, the Chief Special Master already issued findings of fact and conclusions of

law that determined that petitioner cannot meet the specific requirements for

demonstrating a Table SIRVA due to preponderant evidence of a preexisting shoulder

condition.3 (ECF No. 48; 2023 WL 7128178 (Fed. Cl. Spec. Mstr. Sep. 27, 2023).)

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

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

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

11(c)(1)(C)(ii). To so demonstrate, a petitioner must show that the vaccine was “not

only [the] but-for cause of the injury but also a substantial factor in bringing about the

injury.” Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed. Cir.

2010) (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1352-53

3 Table Injury cases are guided by statutory “Qualifications and aids in interpretation” (“QAIs”), which

provide a more detailed explanation of what should be considered when determining whether a petitioner

has suffered an injury listed on the Vaccine Injury Table. 42 C.F.R. § 100.3(c). To be considered a

“Table SIRVA,” petitioner must demonstrate the following: (i) there is “[n]o 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) that “[p]ain occurs within the specified time-frame,” i.e. within 48 hours of vaccination; (iii)

that the “[p]ain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine

was administered”; and (iv) that “[n]o other condition or abnormality is present that would explain the

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

mononeuropathies, or any other neuropathy).” 42 C.F.R. § 100.3(c)(10).

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(Fed. Cir. 1999)); Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1355

(Fed. Cir. 2006). In particular, a petitioner must show by preponderant evidence: (1) a

medical theory causally connecting the vaccination and the injury; (2) a logical

sequence of cause and effect showing that the vaccination was the reason for the

injury; and (3) a showing of proximate temporal relationship between vaccination and

injury in order to prove causation-in-fact. Althen v. Sec’y of Health & Human Servs.,

418 F.3d 1274, 1278 (Fed. Cir. 2005).

A petitioner may also allege that a vaccine caused a “significant aggravation” of a

pre-existing condition. The Vaccine Act defines a significant aggravation as any change

for the worse in a pre-existing condition which results in markedly greater disability,

pain, or illness accompanied by substantial deterioration of health. § 300aa-33(4).

Where a petitioner in an off-Table case is seeking to prove that a vaccination

aggravated a pre-existing injury, petitioners must also address three additional factors

beyond the three-part Althen test. See Loving v. Sec’y of Health & Human Servs., 86

Fed. Cl. 135, 144 (Fed. Cl. 2009) (combining the first three Whitecotton factors for

claims regarding aggravation of a Table injury with the three Althen factors for off-Table

injury claims to create a six-part test for off-Table aggravation claims); see also W.C. v.

Sec’y of Health & Human Servs., 704 F.3d 1352, 1357 (Fed. Cir. 2013) (applying the

six-part Loving test.). The additional Loving factors require petitioners to demonstrate

aggravation by showing: (1) the vaccinee’s condition prior to the administration of the

vaccine, (2) the vaccinee’s current condition, and (3) that the vaccinee’s current

condition constitutes a “significant aggravation” of the condition prior to the vaccination.

W.C., 704 F.3d at 1357.

For both Table and Non-Table claims, Vaccine Program petitioners must

establish their claim by a “preponderance of the evidence.” § 300aa-13(a). That is, a

petitioner must present evidence sufficient to show “that the existence of a fact is more

probable than its nonexistence.” Moberly, 592 F.3d at 1322 n.2. Proof of medical

certainty is not required. Bunting v. Sec’y of Health & Human Servs., 931 F.2d 867,

872-73 (Fed. Cir. 1991). However, a petitioner may not receive a Vaccine Program

award based solely on his assertions; rather, the petition must be supported by either

medical records or by the opinion of a competent physician. § 300aa-13(a)(1). Once a

petitioner has established their prima facie case, the burden then shifts to respondent to

prove, also by preponderant evidence, that the alleged injury was caused by a factor

unrelated to vaccination. Althen, 418 F.3d at 1278 (citations omitted); § 300aa-

13(a)(1)(B).

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

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

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

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

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

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

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

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

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

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

II. Procedural History

Based on the allegations of the petition, this case was initially assigned to the

Chief Special Master as part of the Special Processing Unit (“SPU”). (ECF Nos. 17-18.)

After petitioner filed an affidavit (Ex. 1) and medical records (Exs. 2-16), respondent

filed his Rule 4 Report in May of 2022 (ECF No. 36). In addition to disputing that

petitioner had demonstrated either a Table SIRVA or a shoulder injury caused-in-fact by

his vaccination, respondent contended that petitioner had not satisfied the Vaccine Act’s

severity requirement. (Id. at 6-9; see also § 300aa-11(c)(1)(D) (requiring in pertinent

part that residual effects or complications of the alleged injury persist for at least six

months).)

Thereafter, petitioner filed additional medical records (Exs. 17, 20-21),

photographs (Exs. 18-19), and an affidavit (Ex. 22). (ECF Nos. 38-40, 42.) He then

filed an expert report supporting his claim. (ECF No. 43; Exs. 23-40.) Petitioner’s

expert, orthopedic surgeon Uma Srikumaran, M.D., sought to support both a Table

injury of SIRVA and, alternatively, a shoulder injury caused-in-fact by vaccination. (Ex.

23.) Respondent filed a responsive report by orthopedic surgeon Paul Cagle, M.D.

(ECF Nos. 46-47; Exs. A-B.)

The Chief Special Master then issued findings of fact and conclusions of law

dismissing petitioner’s Table SIRVA claim. (ECF No. 48; 2023 WL 7128178 (Fed. Cl.

Spec. Mstr. Sep. 27, 2023).) However, the Chief Special Master did not reach the

question of whether petitioner had satisfied the statutory severity requirement and

further advised that a claim that petitioner suffered either a shoulder injury caused-in-

fact by vaccination or significantly aggravated by vaccination remained to be litigated.

(Id.) The case was reassigned to the undersigned for this further litigation in February

of 2024. (ECF Nos. 51-52.)

After the case was reassigned, petitioner filed additional medical records (Exs.

41-44) and a third affidavit (Ex. 45). (ECF Nos. 55-58.) Respondent was then

permitted an opportunity to have his expert address the severity requirement. (ECF No.

64; Ex. B.4) Petitioner then filed a responsive report by Dr. Srikumaran. (ECF No. 65;

Exs. 46-48.)

Petitioner filed a motion for a ruling on the written record on January 29, 2025,

which was fully briefed as of March 24, 2025. (ECF Nos. 67-68, 70.) I have determined

that the parties have had a full and fair opportunity to develop the record and that it is

appropriate to rule on the existing record. See Vaccine Rule 8(d); Vaccine Rule 3(b)(2);

Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d 1362, 1366 (Fed. Cir. 2020)

4 When filing Dr. Cagle’s supplemental report, respondent duplicated his use of the exhibit designation

“B,” which had previously been used for Dr. Cagle’s curriculum vitae. Accordingly, this decision will

reference Dr. Cagle’s supplemental report by its ECF No.

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(noting that “special masters must determine that the record is comprehensive and fully

developed before ruling on the record”). Accordingly, petitioner’s motion is now ripe for

resolution.

III. Summary of Record Evidence

Petitioner received the vaccination at issue in his left shoulder on October 26,

2019, at eighty years of age. (Ex. 11, p. 3; Ex. 1, p. 1.) He had a prior history of a left-

side rotator cuff repair in 2009, for which records are not available. (Ex. 1, p. 1; Ex. 16,

p. 10.) Petitioner avers that his surgery resolved his pain and that he was

asymptomatic at the time of his vaccination. (Ex. 1, p. 1; Ex. 22, p. 2.)

Three weeks after that vaccination, on November 15, 2019, petitioner presented

to his primary care provider (“PCP”), Stony Brook Medicine, for, inter alia, left shoulder

pain. (Ex. 7, p. 4.) At that time, he reported that “[a]bout 24-48 hours after the shot,

[he] began to feel muscular pain alongside radiating pain down to the mid bicep with

abrupt, upward movement.” (Id.) A physical exam showed intact active range of

motion, but mild pain with palpation and movement with flexion and abduction. (Id. at

10.) An MRI was ordered for further diagnostic evaluation. (Id. at 11.) That MRI,

conducted on November 20, 2019, showed the following by the radiologist’s impression:

“[s]equela of previous rotator cuff repair with decrease in marrow edema and mild fluid

along the screw compared to prior MRI [of May 19, 20095];”[n]o definitive full-thickness

or high-grade partial rotator cuff tear;” and “[v]ery mild edema in the subcutaneous

tissues later to left shoulder.” (Ex. 5, p. 11.) Trace fluid in the subacromial subdeltoid

bursa was also observed. (Id.)

Petitioner returned to his PCP about a month later. (Ex. 4, p. 2.) The history

reads in pertinent part:

(Id.) Physical exam showed that the left shoulder was tender to palpation laterally at the

bicep tendon with mild tenderness in the bicep groove, range of motion was 0-170 with

internal rotation to L2, which was the same as his right shoulder, but with trace

resistance on external rotation. Petitioner had full strength and was negative for

impingement signs. He had “trace” findings on speed’s testing (which tests for biceps

pathology). (Id.) The MRI was interpreted as showing intact hardware from the prior

rotator cuff repair, but with mild tendinitis and subcutaneous edema. (Id.) The

5 The radiology report actually states that the study was compared to a study from May 19, 2019. (Ex. 5,

p. 10.) However, petitioner has demonstrated that this is a likely typographic error. (ECF No. 59; Ex. 44.)

This occurred subsequent to the prior finding of fact, which notes the fact of the purported May 19, 2019

MRI. (ECF No. 48, p. 3, n. 6 (citing Ex. 5, p. 10).)

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assessment was “left shoulder post injection edema [and] rotator cuff and biceps

tendinitis without tear.” (Id.) Physical therapy was recommended, but petitioner was

cleared to continue playing golf. (Id.)

Thereafter, petitioner attended 24 physical therapy sessions from December 31,

2019, through March 2020. (Ex. 6, pp. 15-79.) At the initial evaluation, petitioner

described his shoulder pain as dull and achy, rating it as between a 3 and 6 on a ten-

point scale, and also described having difficulty reaching overhead, as well as dressing

and showering. (Id. at 76.) On exam, petitioner had reduced strength and active range

of motion in his left shoulder as compared to his right shoulder and painful end feel with

passive range of motion; however, speed’s test and several rotator cuff tests (empty

can, subscapularis lift off, and drop arm) were all negative. (Id. at 77-78.) By March 10,

2020, petitioner was reporting that his pain had improved. He explained that it was less

severe, now 3 out of 10 at worst, and less frequent; however, it was still “annoying” and

subject to sharp stabs or twinges with reaching. (Id. at 15.) Additional physical therapy

was recommended. (Id. at 16.) However, petitioner averred that he stopped attending

physical therapy at that time due to the Covid-19 pandemic. (Ex. 22, p. 3.)

Although petitioner sought care for other reasons from both his orthopedist (Ex.

15, pp. 14-24) and primary care provider (Ex. 7, pp. 15, 18; Ex. 12, pp. 4-7) from April

through September of 2020, he did not return for any care of his left shoulder until

November of 2020 (Ex. 41, pp. 20-27). When petitioner returned for care on November

12, 2020, he reported the following:

(Id. at 20.) On physical exam, he had tenderness to palpation at the medial border of

the scapula, but was able to hug and shrug. (Id.) He also had mild scapular winging,

but had full strength and full and pain free range of motion. (Id.) He was diagnosed

with left shoulder scapulothoracic bursitis, and physical therapy was recommended. (Id.

at 20, 25.) However, an addendum to the medical record of the same date documents

that petitioner then called back to explain that he was also experiencing pain at the front

of the shoulder. (Id. at 27.) The orthopedist advised that he may also have tendinitis

and to maintain the plan for physical therapy. (Id.)

Petitioner then returned to physical therapy on November 20, 2020. (Ex. 13, pp.

14-17.) His chief complaint was “L side shoulder blade and neck pain with reaching

forward or [prolonged] driving.” (Id. at 14.) He attended three more physical therapy

sessions between November and December of 2020. (Id. at 4-19.) This was

documented as a continuation of his prior physical therapy. (Id.) Petitioner averred

that, during the period from March of 2020 through November of 2020, he restricted his

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medical care only to necessary evaluations. “My shoulder was not a topic of discussion

because I had a home exercise I was already doing . . . .” (Ex. 22, p. 3.)

As of a PCP visit of June 9, 2022, it was recorded that petitioner is an

(Ex. 41, p. 11.) A new x-ray showed mild acromioclavicular and glenohumeral

degenerative changes. (Id. at 11, 19.) He was assessed with chronic left shoulder

pain. (Id. at 18.)

a. Expert Opinions

Petitioner presented an expert opinion by orthopedic surgeon Uma Srikumaran,

M.D.6 (Ex. 23.) In his initial report, Dr. Srikumaran stressed based on his review of the

evidence that, despite having had a prior rotator cuff repair, petitioner’s condition was

“dormant and stable” prior to vaccination. (Id. at 4.) Further, he does not believe there

are any medical records that call into question petitioner’s assertion that he experienced

onset of left shoulder pain within 48 hours of the vaccination at issue, and he further

emphasized that the treating orthopedist assessed “post injection edema.” (Id.)

Dr. Srikumaran cites a body of literature (which has also been filed in many other

cases) for the proposition that vaccine antigen injected into the synovial tissue has the

potential to induce a prolonged inflammatory reaction and that this can affect pathology

of the subacromial space, as well as the biceps tendon and glenohumeral joint, resulting

in damage such as bursitis, tendinitis, capsulitis, or bone erosion. (Ex. 23, pp. 6-7.)

Thus, he opined:

6 Dr. Srikumaran received his medical degree from Johns Hopkins University School of Medicine, where

he was trained in orthopaedic surgery. (Ex. 23, p. 1.) Thereafter, Dr. Srikumaran received specialty

training as a shoulder specialist at Harvard. (Id.) Dr. Srikumaran is board certified in orthopaedic

surgery, and he maintains an active medical license in Maryland. (Id.) He has been on the faculty in the

Department of Orthopaedic Surgery at Johns Hopkins School of Medicine since 2011. (Id.) He currently

maintains a position as an Associate Professor in the Shoulder Division at Johns Hopkins University

School of Medicine, as well as the Shoulder Fellowship Director and Chair of Orthopaedic Surgery for the

Howard County General Hospital. (Id.) In his clinical capacity, Dr. Srikumaran has treated approximately

10-12 patients with shoulder dysfunction following vaccination in the last five years. (Id.) In his research

capacity, Dr. Srikumaran has authored several publications in the field of shoulder surgery, including two

articles specifically discussing SIRVA. (Id.)

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(Id. at 7.)

Although petitioner’s condition improved with physical therapy, Dr. Srikumaran

accepted that petitioner continued to manage his condition with his at home exercise

program. (Ex. 23, pp. 4-5.) Furthermore, Dr. Srikumaran opined that petitioner’s re-

initiation of physical therapy was directly related to his prior injury. (Id. at 5.) Although

he described his injury differently in November of 2020, Dr. Srikumaran opined that this

is consistent with the natural progression that SIRVA can take. (Id.)

Respondent’s expert, orthopedic surgeon Paul Cagle, M.D.,7 disagreed that

petitioner’s vaccination can be so implicated. (Ex. A.) He stressed that surgery is

reserved for more severe and refractory cases of rotator cuff tearing and, therefore,

“[t]he evidence of a prior repair in this case demonstrates that [petitioner] has a clear

history of a prior significant rotator cuff tear.” (Id. at 3.) Given that, he opined that a

simple recurrence of petitioner’s rotator cuff condition represents a “viable” cause of his

reported pain. (Id.) Moreover, because there are no available range of motion findings

from prior to vaccination, it is possible that petitioner’s documented 10-degree reduction

in range of motion, which is not very significant, was his existing state following the prior

rotator cuff repair. (Id. at 4.) Dr. Cagle does not appear to have challenged the theory

underlying SIRVA, but opined that its application in this case is not supported by any

evidence in the medical records to suggest a specific immune mediated response. (Id.)

He opined that “there would need to be evidence separating any impact of the

vaccination from any pre-existing shoulder pain. This evidence simply is not

demonstrated in this case.” (Id.) Dr. Cagle contended that “[t]here is simply no

evidence that the pain or loss of range of motion wasn’t already present.” (Id. at 5.)

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

2008, before going on to complete a residency in orthopaedic surgery at the University of Minnesota

Academic Health Center and Medical School in 2013, followed by two shoulder fellowships: one at Mount

Sanai Hospital in New York and another at Private Hospital Jean Mermoz/Centre Orthopaedic Santy in

France. (Ex. B, p. 1.) From there, Dr. Cagle accepted a position as an Assistant Professor and the

Interim Chair of the Department of Orthopaedic Surgery at Southern Illinois University School of Medicine.

(Id.) In 2016, he was elevated to Associate Professor and Associate Program Director in the Leni & Peter

May Department of Orthopedics at the Icahn School of Medicine at Mount Sinai in New York. (Id.; Ex. A,

pp. 1-2.) Dr. Cagle is board certified in orthopaedic surgery, and his clinical practice focuses on the

shoulder, representing approximately 95% of the patients and pathology that he treats. (Ex. B, p. 1; Ex.

A, p. 2.) He has also authored several publications and participated in several presentations. (Id.; Ex. B,

pp. 3-15.)

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Moreover, Dr. Cagle opined that petitioner’s April 17, 2020 encounter for left

upper back pain documented that petitioner had full and pain free range of motion of the

shoulder and that his complaints as of that point were due to scapulothoracic bursitis,

which is not a condition of the shoulder. (ECF No. 64-1, pp. 2-3 (citing Ex. 41, p. 20).)

Thus, petitioner’s shoulder pain resolved within six months of vaccination. (Id.)

(Importantly, however, Dr. Cagle misread the medical record. The date of this visit was

November 12, 2020, rather than April 17, 2020. (Ex. 41, p. 20.))

Responding to Dr. Cagle, Dr. Srikumaran explained that “[t]here can be many

triggers to inflammation that cause a condition to become symptomatic. However, in

this case we have a trigger with a strong, reliably and consistently reported, temporal

association.” (Ex. 46, p. 1.) Moreover, Dr. Srikumaran noted that the treating

orthopedist opined after review of petitioner’s MRI that he was suffering “post injection

edema,” rather than correlating the symptoms to his prior surgery. (Id. at 2.) Dr.

Srikumaran opined that petitioner’s

initial complaints and physical exam findings were consistent with biceps

tendinitis and subacromial impingement syndrome with some loss of range

of motion. As time went on, it became apparent that stiffness progressed.

As range of motion suffered, different parts of the kinetic chain were

stressed and caused pain in the shoulder blade and neck.

(Id.)

IV. Discussion

a. Table SIRVA

Generally, special masters may change or revisit any ruling until judgment

enters, even if the case has been transferred. See McGowan v. Sec’y of Health &

Human Servs., 31 Fed. Cl. 734, 737-38 (1994). In most cases, however, a judicial

officer such as a special master departs from previously decided issues only in the

event of “new evidence, supervening law, or a clearly erroneous decision.” Id. at 737;

see also Sullivan v. Sec’y of Health & Human Servs., No. 10-398V, 2015 WL 1404957,

at *20 n.36 (Fed. Cl. Spec. Mstr. Feb. 13, 2015). Thus, petitioners should not expect

that the Chief Special Master’s findings in SPU cases will be revisited simply as a result

of reassignment to another special master. E.g., Kuczarski v. Sec’y of Health & Human

Servs., No. 20-312V, 2023 WL 8713719, at *6 (Fed. Cl. Spec. Mstr. Nov. 17, 2023)

(explaining that “as long as a case continues to be litigated there is always a possibility

that further record development will necessitate revisiting a prior finding based on newly

discovered evidence. However, petitioners should not view reassignment of a case out

of the SPU as a second bite at the apple regarding what has already been decided”);

Molina v. Sec’y of Health & Human Servs., No. 20-845V, 2024 WL 4223393, at *8-9

(Fed. Cl. Spec. Mstr. Aug. 15, 2024) (maintaining the Chief Special Master’s findings as

to petitioner’s alleged Table injury claim). But see Pitts v. Sec’y of Health & Human

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Servs., No. 18-1512V, 2023 WL 2770943, at *8-9 (Fed. Cl. Spec. Mstr. Apr. 4, 2023)

(revisiting a fact finding from the SPU in significant part due to a change in law).

In this case, petitioner has not argued that the Chief Special Master’s finding of

fact dismissing the Table SIRVA claim should be revisited. However, I note in the

interest of completeness that I have considered whether the evidence filed subsequent

to that finding of fact would warrant re-evaluation of petitioner’s Table SIRVA claim. I

find that it does not, and I adopt the Chief Special Master’s finding and analysis of

petitioner’s Table claim as my own. Of note, however, the Chief Special Master

explained that it is the nature of the SIRVA QAI that evidence of a prior or alternative

condition need only be significant enough to “muddy” the findings necessary to implicate

the vaccine under the Table criteria. (ECF No. 48, p. 9.) Accordingly, he explained that

the dismissal of the Table injury is not dispositive of whether either a cause-in-fact or

significant aggravation claim is viable. (Id.)

b. Causation-in-Fact/Significant Aggravation

i. Loving prongs 1-3

Because the basis for dismissal of the Table claim is potentially suggestive of a

significant aggravation framework, and because the parties briefed both causation-in-

fact and significant aggravation, I will briefly delineate my findings of fact under the first

three Loving prongs to explain why this case is better addressed as a new injury

caused-in-fact by vaccination.

• Prior to vaccination (Loving prong one), petitioner had a remote history of

a prior rotator cuff repair surgery from about ten years prior. Petitioner

avers that his surgery was successful and that he was pain free at the

time of vaccination. Nothing in the medical records calls this into question.

Accordingly, while petitioner did have a history of dysfunction that could

potentially explain his later presentation (contra Table SIRVA QAI (i) and

(iv)), Dr. Srikumaran is persuasive in opining that petitioner’s condition

prior to vaccination can be characterized as “dormant.” However, while

petitioner was pain free, there is no record evidence documenting the

extent of his range of motion prior to vaccination.

• After vaccination (Loving prong two), petitioner presented with a new

onset of left shoulder pain and mildly reduced range of motion. However,

it is unclear how this mild reduction in range of motion would compare to

his prior state. Petitioner’s treating physician interpreted his MRI as

showing intact hardware from the prior rotator cuff repair, but with mild

tendinitis and subcutaneous edema. (Ex. 4, p. 2.) The assessment was

“left shoulder post injection edema [and] rotator cuff and biceps tendinitis

without tear.” (Id.) Petitioner’s orthopedist would later remark that

petitioner’s pain presentation in November of 2020 likely represented

continued tendinitis. (Ex. 41, p. 27.)

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• There is no medical opinion documented in the medical records indicating

that petitioner’s diagnosed tendinitis and edema were sequela of his prior

rotator cuff repair. At best, the radiologist’s impression is ambiguous with

regard to such a connection, having noted, among other findings,

“[s]equela of previous rotator cuff repair with decrease in marrow edema

and mild fluid along the screw.” (Ex. 5, p. 11.) However, as noted above,

the treating physician diagnosed biceps tendinitis and post-injection

edema without referencing the prior shoulder surgery and while remarking

that the repair hardware remained intact. (Ex. 4, p. 2.) Petitioner’s expert,

Dr. Srikumaran, likewise invoked a direct causal relationship between

petitioner’s vaccination and biceps tendinitis. (Ex. 23, p. 7.) Only

respondent’s expert, Dr. Cagle, supports a role for petitioner’s prior

shoulder surgery in explaining his post-vaccination presentation. (Ex. A.)

However, Dr. Cagle’s opinion is not persuasive in that he merely relies on

the fact of the prior shoulder surgery, as well as the notion that repaired

rotator cuffs can potentially become symptomatic again. (Id. at 3.) Dr.

Cagle’s opinion is insufficient to preponderantly establish that petitioner’s

post-vaccination presentation is a worsening of the pre-existing, otherwise

dormant, condition (i.e., the repaired rotator cuff). Accordingly, this is not

a case of significant aggravation (Loving prong three).

ii. Althen test

As explained above, in a cause-in-fact context petitioner must meet the three-

part Althen test by demonstrating: (1) a medical theory causally connecting the

vaccination and the injury; (2) a logical sequence of cause and effect showing that the

vaccination was the reason for the injury; and (3) a showing of proximate temporal

relationship between vaccination and injury in order to prove causation-in-fact. Althen,

418 F.3d at 1278.

Under Althen prong one, petitioner’s theory must be “reputable,” though it need

only be “legally probable, not medically or scientifically certain.” Pafford v. Sec’y of

Health & Human Servs., 451 F.3d 1352, 1355-56 (Fed. Cir. 2006) (quoting Pafford v.

Sec’y of Health & Human Servs., No. 01-0165V, 2004 WL 1717359, at *4 (Fed. Cl.

Spec. Mstr. July 16, 2004), mot. for rev. denied, 64 Fed. Cl. 19 (2005), aff’d, 451 F.3d

1352 (Fed. Cir. 2006)); Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548-

49 (Fed. Cir. 1994). Petitioner may satisfy the first Althen prong without resort to

medical literature, epidemiological studies, demonstration of a specific mechanism, or a

generally accepted medical theory. See Andreu v. Sec’y of Health & Human Servs.,

569 F.3d 1367, 1378-79 (Fed. Cir. 2009) (citing Capizzano v. Sec’y of Health & Human

Servs., 440 F.3d 1317, 1325-26 (Fed. Cir. 2006)). However, “[a] petitioner must provide

a ‘reputable medical or scientific explanation’ for [the proposed causal] theory,” which

must be “sound and reliable.” Boatmon v. Sec’y of Health & Human Servs., 941 F.3d

1351, 1359 (Fed. Cir. 2019) (citation omitted) (first quoting Moberly v. Sec’y of Health &

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Human Servs., 592 F.3d 1315, 1322 (Fed. Cir. 2010); then quoting Knudsen, 35 F.3d at

548-49).

In this case, respondent argues that petitioner’s theory of causation is too

generic. (ECF No. 68, p. 11.) Respondent contends that “petitioner points out several

publications regarding the medical theory of how a vaccination can cause a shoulder

injury, and then suggests an immune mediated reaction. The assertion is conclusory

and does not meet petitioner’s burden of proof under Althen.” (Id. (citing ECF No. 67,

pp. 6-8).) However, while it may be true that petitioner’s motion resorted to a broad

description of the relevant literature, this criticism cannot reasonably be carried over to

Dr. Srikumaran’s opinion. Dr. Srikumaran reasonably explained that vaccination into

the subacromial bursa can lead to a prolonged and robust inflammatory reaction that

can affect, inter alia, the biceps tendon. (Ex. 23, p. 6.) Thus, he specifically applied the

relevant literature to biceps tendinitis, the specific condition with which petitioner was

diagnosed. (Id. at 7.) This explanation is supported by literature filed in this case. (S.

Atanasoff et al., Shoulder Injury Related to Vaccine Administration (SIRVA), 28 VACCINE

8049 (2010) (Ex. 24); Marko Bodor & Enoch Montalvo, Vaccination-Related Shoulder

Dysfunction, 25 VACCINE 585 (2007) (Ex. 27).) And this type of opinion, based on the

same literature, has been previously accepted in the cause-in-fact context.8 Moreover,

while Dr. Cagle does challenge the applicability of petitioner’s theory to the instant case,

he does not challenge the theory itself as a matter of general causation. Thus,

petitioner has met his burden of proof under Althen prong one.

With general causation established, petitioner must also present evidence that

the vaccine in question “did” cause petitioner’s injury. This is assessed under the

second and third Althen prongs. The third prong asks whether the timing of injury in this

specific case aligns with what would be expected under the general theory presented

under Althen prong one. Pafford, 451 F.3d at 1358. In this case, respondent does not

dispute that petitioner has met his burden of proof under Althen prong three. (ECF No.

68, p. 12, n. 6.) The second Althen prong requires preponderant proof of a logical

sequence of cause and effect, which is usually supported by facts derived from

8 See Morris v. Sec’y of Health & Human Servs., No. 19-1570V, 2023 WL 5092691, at *6 (Fed. Cl. Spec.

Mstr. July 11, 2023) (explaining of the Atanasoff and Bodor publications that “[r]egardless of respondent’s

argument that the broader SIRVA concept is a creature of his own rulemaking, respondent cannot

reasonably argue that these studies which he had already himself specifically endorsed are not

persuasive as support for a medical theory of causation”); see also A.P. v. Sec’y of Health & Human

Servs., No. 17-784V, 2022 WL 275785, at *26-27 (Fed. Cl. Spec. Mstr. Jan. 31, 2022) (Special Master

Gowen concluding that petitioner had presented a reputable scientific theory for how the MMR vaccine

can cause shoulder pain and dysfunction and noting that “[b]oth the Atanasoff and Bodor articles support

a causal association between vaccination and shoulder dysfunction”); Lesher v. Sec’y of Health & Human

Servs., No. 17-1076V, 2020 WL 4522381, at *11-12 (Fed. Cl. Spec. Mstr. July 2, 2020) (Chief Special

Master Corcoran relying on the Atanasoff and Bodor articles in concluding that the evidence “comprises

preponderant evidence sufficient to show that the seasonal influenza vaccine, when administered

intramuscularly but improperly injected in the synovial space, can cause an inflammatory response

resulting in shoulder injury”); Lucarelli v. Sec’y of Health & Human Servs., No. 16-1712V, 2019 WL

1220933, at *5-6 (Fed. Cl. Spec. Mstr. Feb. 4, 2019) (Special Master Dorsey relying on Atanasoff and

Bodor articles in concluding that petitioner had preponderantly shown how vaccination can cause a robust

local and immune inflammatory response leading to pain and reduced range of motion).

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petitioner’s medical records.9 Althen, 418 F.3d 1278; Andreu, 569 F.3d at 1375-77;

Capizzano, 440 F.3d at 1326; Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144,

1148 (Fed. Cl. Spec. Mstr. Feb. 25, 1992). While the opinions of treating physicians are

often favored, Capizzano, 440 F.3d at 1326, a petitioner may support a cause-in-fact

claim through presentation of either medical records or an expert medical opinion. See

§ 300aa-13(a).

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

meaning,” but has also indicated that satisfaction of Althen prongs one and three is

probative with respect to Althen prong two.10 Capizzano, 440 F.3d at 1326-27.

Nonetheless, temporal association alone is not enough to satisfy petitioner’s burden of

proof. See, e.g., Veryzer v. Sec’ y of Health & Hu man Servs., 100 Fed. Cl. 344, 356

(2011) (explaining that “a temporal relationship alone will not demonstrate the requisite

causal link and that petitioner must posit a medical theory causally connecting [the]

vaccine and injury”), aff’d per curiam sub nom. Veryzer v. United States, 475 F. App’x

765 (Fed. Cir. 2012); A.Y. v. Sec’y of Health & Human Servs., 152 Fed. Cl. 588, 595

(2021); Forrest v. Sec’y of Health & Human Servs., No. 10-032V, 2017 WL 4053241, at

*18 (Fed. Cl. Spec. Mstr. Aug. 10, 2017); Cozart v. Sec’y of Health & Human Servs., No.

00-590V, 2015 WL 6746616, at *18 (Fed. Cl. Spec. Mstr. Oct. 15, 2015), mot. for rev.

denied, 126 Fed. Cl. 488 (2016); Crosby v. Sec’y of Health & Human Servs., No. 08-

799V, 2012 WL 13036266, at *37 (Fed. Cl. Spec. Mstr. June 20, 2012).

In this case, with Althen prongs one and three having been met, the treating

physician’s opinion that petitioner demonstrated “left shoulder post injection edema

[and] rotator cuff and biceps tendinitis without tear” carries significant weight. (Ex. 4, p.

2.) The fact that this opinion may largely be based on temporality is not disqualifying.

9 Medical records are generally viewed as trustworthy evidence. Cucuras v. Sec’y of Health & Human

Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). These records are generally contemporaneous to the

medical events and “contain information supplied to or by health professionals to facilitate diagnosis and

treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra

premium.” Id. However, medical records and/or statements of a treating physician’s views do not per se

bind the special master. § 300aa-13(b)(1) (providing that “[a]ny such diagnosis, conclusion, judgment,

test result, report, or summary shall not be binding on the special master or court”); Snyder v. Sec’y of

Health & Human Servs., 88 Fed. Cl. 706, 745 n.67 (2009) (reasoning that “nothing . . . mandates that the

testimony of a treating physician is sacrosanct—that it must be accepted in its entirety and cannot be

rebutted”).

10 The Capizzano Court described the circumstances in which Althen prong two may be a stumbling block

as follows:

There may well be a circumstance where it is found that a vaccine can cause the injury at

issue and where the injury was temporally proximate to the vaccination, but it is illogical to

conclude that the injury was actually caused by the vaccine. A claimant could satisfy the

first and third prongs without satisfying the second prong when medical records and

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

of coincidence or another cause prevents the claimant from proving that the vaccine

caused the injury by preponderant evidence.

440 F.3d at 1327.

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Capizzano, 440 F.3d at 1326-27. Moreover, that opinion is further supported by Dr.

Srikumaran’s more detailed explanation, which indicates that, pursuant to his theory of

causation, a logical sequence of cause and effect exists whereby “the needle injection

of vaccine antigen inadvertently near the bursa or rotator cuff tendon led to a strong

immune mediated inflammatory reaction” ultimately leading to biceps tendinitis. (Ex. 23,

p. 7.)

I have also considered Dr. Cagle’s competing assessment, which concludes that

petitioner’s prior rotator cuff repair is in itself a more likely cause of his pain. (Ex. A;

ECF No. 64-1.) However, I find Dr. Cagle’s opinion less persuasive for two significant

reasons. First, Dr. Cagle stresses that the fact of petitioner’s prior surgery speaks to the

severity of his prior rotator cuff tear (Ex. A, p. 3), but does not credibly grapple with the

fact that petitioner reported the surgery to have relieved his pain. Instead, Dr. Cagle

incorrectly conflates the absence of evidence regarding petitioner’s prior condition (see

id. at 5 (noting “[t]here is simply no evidence that the pain or loss of range of motion

wasn’t already present”)) with a confounding presence of preexisting pain (see ECF No.

64-1, p. 4 (contending Dr. Srikumaran’s opinion is inadequate “in the setting of well-

documented pre-existing shoulder pain”)). Second, and relatedly, even without

doubting that rotator cuff symptoms can potentially reappear after a surgical repair, I

agree with Dr. Srikumaran (Ex. 46, pp. 1-2) that Dr. Cagle has not adequately explained

why petitioner’s own clinical history is better explained as a consequence of his remote

history of a prior surgical repair ten years prior, rather than the vaccination that

respondent concedes occurred just prior to onset. Apart from the fact of the preceding

surgery, Dr. Cagle has not pointed to any specific factor that would affirmatively support

petitioner’s surgical repair as the underlying cause of his condition. By contrast, and as

noted above, the treating physician specifically remarked upon a post-injection edema

while also noting that the repair hardware remained intact. (Ex. 4, p. 2.) In effect, Dr.

Cagle’s opinion was no more specific than to suggest that a prior rotator cuff repair is

always the most likely explanation of shoulder pain manifesting later in life.

In light of all of the above, I find that petitioner has demonstrated that he suffered

a left shoulder injury caused-in-fact by his October 26, 2019 flu vaccination.

c. Severity Requirement

In order to state a claim for a vaccine-related injury under the Vaccine Act, a

vaccinee must have either:

(i) suffered the residual effects or complications of such illness, disability,

injury, or condition for more than 6 months after the administration of the

vaccine, or (ii) died from the administration of the vaccine, or (iii) suffered

such illness, disability, injury, or condition from the vaccine which resulted

in inpatient hospitalization and surgical intervention.

§ 300aa-11(c)(1)(D).

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Neither “residual effects” nor “complication” is defined within the Vaccine Act

itself. See § 300aa-33. However, in Wright v. Secretary of Health & Human Services,

the Federal Circuit described these terms as follows: “‘Residual’ suggests something

remaining or left behind from a vaccine injury. An effect that is ‘residual’ or ‘left behind’

is one that never goes away or that recurs after the original illness.” 22 F.4th 999, 1005

(Fed. Cir. 2022) (internal citation omitted). A “complication,” however, is a “morbid

process or event occurring during a disease which is not an essential part of the

disease, although it may result from it.” Id. at 1006 (quoting Abbott v. Sec’y of Health &

Human Servs., 27 Fed. Cl. 792, 794 (1993)).

Read together, “residual effects” and “complications” appear to both refer

to conditions within the patient, with “residual effects” focused on lingering

signs, symptoms, or sequelae characteristic of the course of the original

vaccine injury, and “complications” encompassing conditions that may not

be “essential part[s] of the disease” or may be outside the ordinary

progression of the vaccine injury.

Id. (alteration in original).

In Kirby v. Secretary of Health & Human Services, the Federal Circuit confirmed

that it is not an error for a special master to find the severity requirement met where that

finding is based on a collection of “plausible evidence.” 997 F.3d 1378, 1381 (Fed. Cir.

2021). In that case, petitioner’s medical records reflected active treatment of her

condition for only a few months before she was released as having reached maximum

medical improvement, though not entirely symptom free. Id. at 1380. Thereafter, the

medical records were silent as to her alleged residual effects for the remaining duration

of the six-month post-vaccination period. Id. However, petitioner testified that she

continued a home exercise plan for more than a year. Id. at 1381. Her testimony was

corroborated by documentation in the form of her retained home exercise sheet, a more

remote return visit where the relevant symptoms were again reported, and an expert

opinion confirming her reported symptoms were consistent with her injury. Id. The

Federal Circuit concluded that where the medical records are silent, rather than

contradictory, it was not error for the special master to credit the petitioner’s

corroborated testimony as evidence satisfying the six-month severity requirement. Id. at

1383-84.

In this case, with onset of shoulder pain having occurred in late October of 2019,

petitioner must demonstrate that the effects of his vaccine injury persisted until late May

of 2020. Yet, he discontinued physical therapy on March 10, 2020, about four and a

half months post-vaccination. (Ex. 6, pp. 15-16.) Importantly, however, petitioner

reasonably explains that the Covid-19 pandemic factored into his treatment-seeking,

even as it did not entirely prevent him from seeking care. (Ex. 22, p. 3.) This

explanation has been credited in prior similar cases. E.g., Tackett v. Sec’y of Health &

Human Servs., No. 20-1705V, 2023 WL 6995391, at *9 (Fed. Cl. Spec. Mstr. Sep. 25,

2023) (finding the severity requirement met where treatment stopped after five months

and placing “significant weight on the disruptions caused by the Covid-19 pandemic as

15

the reason petitioner stopped attending physical therapy when he did”); Patterson v.

Sec’y of Health & Human Servs., No. 20-1919V, 2026 WL 473257, at *18 (Fed. Cl.

Spec. Mstr. Jan. 21, 2026). Moreover, petitioner’s subsequent treatment record from

November 12, 2020, confirms as of that date that petitioner was continuing his at home

physical therapy exercise program. (Ex. 41, p. 20.)

Additionally, petitioner’s November 20, 2020 physical therapy records document

his treatment from that period as a continuation of his prior physical therapy. (Ex. 13,

pp. 14-17.) Dr. Srikumaran’s opinion that petitioner’s presentation from November of

2020 is potentially consistent with the evolution of a SIRVA is supported by the treating

orthopedist’s addendum explaining that petitioner’s presentation likely included a

continuation of his tendinitis in addition to his newly diagnosed scapulothoracic bursitis.

(Ex. 41, p. 27.) Dr. Cagle’s competing opinion that the scapulothoracic bursitis

diagnosis, and the physical exam leading to it, are dispositive of the severity

requirement is not persuasive, because it was based on the incorrect assumption that

the encounter occurred less than six months post-vaccination. (ECF No. 64-1, pp. 2-3.)

Respondent stresses that petitioner otherwise sought treatment from his

orthopedist on five occasions between July and September of 2020 without mentioning

his shoulder pain. (ECF No. 68, pp. 4-6 (citing Ex. 15, pp. 14-24).) He cites Watts v.

Secretary of Health & Human Services, No. 17-1494V, 2019 WL 4741748, at *7 (Fed.

Cl. Spec. Mstr. Aug. 13, 2019), as instructive. In that case, the petitioner entirely

stopped seeking treatment for a period of two years and only returned to report further

symptoms in connection with litigation. Watts, 2019 WL 4741748, at *7. However,

Watts is clearly distinguishable, both because I find this petitioner’s return to treatment

to be credible and because the gap in treatment is much less lengthy. Moreover, the

gap in treatment can at least partly be explained by the pandemic. And, notably, the

orthopedic encounters respondent cites were for other specific purposes and included

no documented examination of the upper extremities. (Ex. 15, pp. 14-24.)

For these reasons, petitioner has preponderantly demonstrated that he suffered

complications or residual effects of his vaccine-caused shoulder injury for more than six

months.

V. Conclusion

After weighing the evidence, and considering the record as a whole, I find that

petitioner has preponderantly demonstrated that he is entitled to compensation for a

shoulder injury caused-in-fact by his October 26, 2019 flu vaccination. A separate

damages order will be issued.

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

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