The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-0258V
MICHAEL ERHART,
Chief Special Master Corcoran
Petitioner,
v.
SECRETARY OF HEALTH AND Filed: May 5, 2026
HUMAN SERVICES,
Respondent.
Jonathan J. Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner.
Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT 1
On February 22, 2023, Micheal Erhart filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that as a result of an influenza (“flu”) vaccine received
on October 21, 2021, he suffered a left shoulder injury related to vaccine administration
(“SIRVA”) as defined by the Vaccine Injury Table (the “Table”). Petition at 1 (ECF No. 1).
The case was assigned to the Special Processing Unit of the Office of Special Masters.
1 Because this ruling and decision contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government
Services). This means this Ruling/Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
determine that the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
For the reasons discussed below, I find that Petitioner has carried his burden of
proof in establishing that he suffered a Table SIRVA injury, and therefore is entitled to
compensation.
I. Relevant Procedural History
This claim was initiated on February 22, 2023. (ECF No. 1). Petitioner
subsequently filed medical records as well as signed declarations supporting his claim on
March 10, 2023, and August 5, 2024. (ECF Nos. 6, 25). On January 19, 2024,
Respondent filed his Rule 4(c) Report in which he contested entitlement, along with a
motion to dismiss. (ECF No. 15). Petitioner filed additional medical records thereafter and
on August 5, 2024, Petitioner filed a Motion for Ruling on the Record. (ECF No. 27).
Respondent filed his response brief on September 18, 2024. (ECF No. 29). Petitioner
filed a Reply brief on September 25, 2024. (ECF No. 30). The matter is now ripe for
disposition.
II. Relevant Medical History
A. Medical Records
On October 21, 2021, Petitioner received both flu and Covid-19 vaccines. Ex. 2 at
3, 6. The site of the injection of both vaccinations is not noted in the vaccine record. Id.
Petitioner’s pre-vaccination medical history includes degenerative disc disease, plantar
fasciitis, and bilateral foot pain, but no history of shoulder pain or injury. Ex. 3 at 7, 64.
On November 2, 2021, 12 days post vaccination, Petitioner messaged his primary
care provider (“PCP”) via the patient portal, stating that “I have been having a lot of pain
in my arm since the covid shot (left arm, I think that was the covid shot, I had two that
day, flu shot too, don’t remember which in which arm).” Ex. 3 at 77-78. He continued to
state he did his own online research and “[c]ovid arm (or what should be more
[appropriately] called vaccine arm seems to be the culprit, but its pretty bad…I did try my
steroid cream you gave me for about four days…nothing.” Id. at 78. He reported having
difficulty lifting his arm. Id. His PCP, Austin Martin, MD, responded, recommending he try
Tylenol and a heating pad for some relief. Id. at 77.
On January 4, 2022, Petitioner had an appointment at his PCP’s office for low back
and left upper arm pain “which came about following his flu vaccine.” Ex. 9 at 8. 3 He
reported that “after about a week his pain started to increase.” Id. Petitioner described
having difficulty with reaching overhead, behind his back, across his body and rated his
3 These records are stamped as “Petitioner’s Exhibit 7,” but were filed as “Petitioner’s Exhibit 9.”
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pain at a 6/10. Id. at 8-9. Physical examination showed reduced range of motion (“ROM”),
reduced strength, and a positive Hawkins-Kennedy test. Id. at 11. Petitioner was to attend
ten physical therapy (“PT”) visits. Id. at 12.
On January 11, 2022, Petitioner had an initial orthopedic evaluation of his left
shoulder at OSFMG Ottawa Ortho. Ex. 4 at 2. 4 Petitioner reported left shoulder pain
primarily in the upper arm that started “approximately [three] months ago,” near the time
he received a flu vaccine. Id. at 2. He was evaluated at his PCP and referred to
orthopedics after taking meloxicam 5 with “limited improvement.” Id. Physical examination
showed decreased range of motion (“ROM”) of the left shoulder, minimally reduced
strength, tenderness to palpation of the left deltoid, and positive Hawkin’s test. Id. at 3.
An x-ray performed showed moderate degenerative changes of the acromioclavicular
joint and the glenohumeral joint. Id. at 52. Petitioner was diagnosed with left shoulder
adhesive capsulitis and left upper arm pain, with a note that “focal pain in the deltoid,
likely related to flu vaccination. There is no evidence of [rotator cuff] weakness to suggest
[a] related tear.” Id. at 3. The provider also administered a left subacromial steroid
injection, prescribed diclofenac and a steroid pack, and recommended Petitioner continue
PT. Id.
Between January 11 - March 24, 2022, Petitioner attended 16 total PT sessions.
Ex. 9 at 16-55. 6 At his eighth PT session on March 8, 2022, it was noted that Petitioner
had “gradual process with regards to his [left] shoulder ROM.” Id. at 27. At his final PT
session on March 24, 2022, Petitioner reported his shoulder was “feeling a little better”
with some “improvements in his shoulder motion with decreased pain but continues to
have pain with reaching overhead.” Id. at 52. He continued to state he was “pleased with
the progress he ha[d] made.” Id.
Petitioner had no further treatment for his left shoulder pain but continued to attend
medical appointments for other ailments. From April 14 - May 17, 2022, Petitioner
attended six PT sessions for bilateral foot pain but made no complaints of further left
shoulder pain. Ex. 9 at 56-72.
B. Personal Statements
Petitioner submitted three declarations in support of his claim. In Petitioner’s first
declaration, he stated that he is a 54 year-old male who lives in Illinois and is self-
4 There is a second copy of this record at Ex. 8 at 10-19.
5 The medical records do not indicate a prescription for Meloxicam.
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These records are stamped as “Petitioner’s Exhibit 7” however they are filed as “Petitioner’s Exhibit 9.”
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employed as a guitar teacher. Ex. 1 at 1. He was administered a flu vaccination in his left
arm at OSF Health Care-Medical Group in Ottawa, Illinois. Id. He continued to state that
he “began to experience constant pain in [his] left shoulder of a 2 or 3 with an occasional
4-8 on a 10-point scale.” Id. He tried to treat himself with a homemade sling, took Tylenol,
and tried home stretches. Id. at 2. He then stated the events as described in the medical
records. Id. at 2-5. A supplemental declaration filed on August 5, 2024, Petitioner
reiterated the events as described in the original declaration and medical records. Ex. 11.
Petitioner continued that to this day he has gained over 70 pounds since is injury as
movement is painful, he has difficulty with hygiene, playing the guitar, preparing food and
had to cut his long hair as he could not maintain it. Id. at 12. The injury has also
aggravated his depression as he feels he “feel[s] [he] has lost the ability to reach out to
the world and exist.” Id. at 13.
Additionally, Petitioner submitted a signed declaration from his mother, Catharine
Minor. Ex. 12. Ms. Miner stated she spoke with her son almost daily and saw him often
as he lived less than an hour away. Id. at 2. Ms. Miner claims that Petitioner first told her
of the “injury” in a phone call in “late October 2022.” Id. at 2. Over the next few months
Petitioner still had complaints of having shoulder pain. Id. Ms. Miner says she “witnessed
first hand in September 2022” when he moved in with her. Id. To date she claims that it
has been too painful for him to “contribute” to the household. Id. at 4. He has “anti-social
tendencies as well as [an] avoidance of travel” and suffers from depression. Id. at 5.
III. Parties’ Respective Arguments
Respondent argues that Petitioner has failed to meet the severity requirement
because the records do not support the contention that he suffered the effects of his
SIRVA for at least six months. Response at 6. Petitioner maintains that the record is
sufficient to establish preponderant evidence in his favor. Mot. at 13.
IV. Applicable Law
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation,
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
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contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” Murphy v. Sec’y of
Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,
1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd
per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as
incorrect the presumption that medical records are accurate and complete as to all the
patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has outlined four possible explanations
for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y
of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).
The credibility of the individual offering such fact testimony must also be determined.
Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley
v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
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The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within
the special master’s discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
V. Analysis
I. Fact Findings – Onset and Entitlement
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement, 7 a
petitioner must establish that he suffered an injury meeting the Table criteria, in which
case causation is presumed, or an injury shown to be caused-in-fact by the vaccination
he received. Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). A
vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests
all of the following:
(i) No history of pain, inflammation, or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
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In summary, a petitioner must establish that he received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of his injury for more than six months, died from his injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for his injury. See § 11(c)(1)(A)(B)(D)(E).
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(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
A. Factual Findings Regarding a Table SIRVA
After a review of the entire record, I find that a preponderance of the evidence
supports the conclusion that Petitioner has satisfied the Qualifications and Aids to
Interpretation (“QAI”) requirements for a Table SIRVA.
1. Petitioner has no Prior Left Shoulder Condition or Injury
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i). Here, there is no evidence that Petitioner
suffered from left shoulder pain before his October 21, 2021, vaccination. Respondent
has also not made any argument suggesting he believes that Petitioner had a prior left
shoulder condition or injury. Accordingly, Petitioner has met the first QAI requirement.
2. Pain Occurs Within the Specified Timeframe (Onset)
A petitioner must show that he experienced the first symptom or onset within 48
hours of vaccination (42 C.F.R. §§ 100.3(a)(XIV)(B) & 100.3(c)(10)(ii) (QAI criteria)).
Respondent has not argued that Petitioner has failed this requirement, and upon
consideration of the record I find that preponderant evidence exists to find that Petitioner’s
left shoulder pain likely began within 48-hours of receiving a flu vaccine on October 21,
2021.
3. Petitioner’s Pain and Limited Range of Motion was Limited to his
Left Shoulder
The specific language of a SIRVA injury contained in the QAI of the Vaccine Injury
Table is that “pain and reduced range of motion are limited to the shoulder in which the
intramuscular vaccine was administered.” 42 C.F.R. § 100.3(c)(10)(iii) (QAI criteria)).
Once again, Respondent has not offered any argument that Petitioner’s pain and reduced
range of motion impacted anywhere other than his left shoulder, and there is nothing in
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the record which would allow me to make such a finding. Accordingly, Petitioner has
satisfied the third QAI requirement for entitlement.
4. There is No Evidence of Another Condition or Abnormality
The last criterion for a Table SIRVA states that there must be no other condition or
abnormality which would explain Petitioner’s current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). Once again, there is insufficient evidence in the record to suggest an
alternative cause of Petitioner’s left shoulder issues and Respondent does not argue that
there is any evidence of another condition or abnormality. There is no serious contention
that Petitioner’s initial symptoms were brought on by anything other than his vaccination.
Accordingly, I find that Petitioner has satisfied the fourth QAI requirement for entitlement.
B. Other Requirements for Entitlement
In addition to establishing a Table injury, a petitioner must also provide
preponderant evidence of the additional requirements of Section 11(c). The overall record
contains preponderant evidence to fulfill these additional requirements.
The record shows that Petitioner received a flu vaccine intramuscularly on October
21, 2021. Ex. 1; see Section 11(c)(1)(A) (requiring receipt of a covered vaccine); Section
11(c)(1)(B)(i)(I) (requiring administration within the United States or its territories). There
is no evidence that Petitioner has collected a civil award for his injury. Petition at 4;
Section 11(c)(1)(E) (lack of prior civil award).
As stated above, I have found that the onset of Petitioner’s left shoulder pain was
within 48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this
requirement). This finding also satisfies the requirement that Petitioner’s first symptom or
manifestation of onset occur within the time frame listed on the Vaccine Injury Table. 42
C.F.R. § 100.3(a)(XIV)(B) (listing a time frame of 48 hours for a Table SIRVA following
receipt of the influenza vaccine). I have also found that Petitioner’s pain and reduced
range of motion was limited to his left shoulder. 42 C.F.R. § 100.3(c)(10). Finally, I find
that there was no condition or abnormality that would explain Petitioner’s symptoms after
vaccination. Id. Therefore, Petitioner has satisfied all requirements for a Table SIRVA.
The last criteria which must be satisfied by Petitioner involves the duration of his
SIRVA. For compensation to be awarded, the Vaccine Act requires that a petitioner
suffered the residual effects of his or her left shoulder injury for more than six months (or
required surgical intervention). See Section 11(c)(1)(D)(i) (statutory six-month
requirement). To satisfy the six-month requirement, “[a] potential petitioner must do
something more than merely submit a petition and an affidavit parroting the words of the
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statute.” Faup v. Sec'y of Health & Hum. Servs., No. 12-87V, 2015 WL 443802, at *4
(Fed. Cl. Spec. Mstr. Jan. 13, 2015). Rather, a petitioner is required to “submit supporting
documentation which reasonably demonstrates that the alleged injury or its sequelae
lasted more than six months[.]” Id. Although a petitioner cannot establish the length or
ongoing nature of an injury merely through self-assertion, the fact that a petitioner has
been discharged from medical care before the expiration of the six-month period does not
necessarily indicate that there are no remaining or residual effects from his or her alleged
injury. See, e.g., Herren v. Sec’y of Health & Hum. Servs., 2014 WL 3889070, at *3
(finding that a petitioner suffered from residual symptoms that due to their mild nature did
not require medical care).
It is uncontroverted that Petitioner received a flu vaccine on October 21, 2021.
Therefore, to meet the severity requirement he must show that his symptoms persisted
through at least April 23, 2022. Respondent notes that Petitioner was discharged from PT
on March 22, 2022, just over five months after vaccination, and that he did not complain
of left shoulder pain after this despite seeking treatment for other ailments. Response at
6. Thus, Respondent deems severity to be unmet. Respondent also argues that the
affidavits submitted by Petitioner are contradictory to what is reported in the medical
records, and deserve less weight because they were made in the context of litigation. Id.
Even without consideration of the affidavits, preponderant evidence exists to find
that Petitioner has established the severity of his injury. Petitioner was discharged from
PT on March 24, 2022, and although by the end of the course Petitioner indicated that he
experienced no pain at rest, it was noted that at time of discharge he still had some
limitations with his left shoulder ROM and mild strength deficits. Ex. 9 at 53-55. The record
also notes that Petitioner “will continue to improve with doing his updated home exercises
program” and that he will “continue independently with HEP.” Id. at 55. Petitioner adds
that he did perform the exercises prescribed to him by his HEP. Ex. 1 at 4.
Overall, the lack of evidence of continuous treatment past discharge from PT does
not prevent a finding that the severity of Petitioner’s injury persisted somewhat beyond
six months of onset. It appears that Petitioner opted for self-care such as his HEP, for the
period after discharge, based on the recommendations he received from his physical
therapist at the time of his discharge. Indeed, the records clearly state that Petitioner’s
symptoms, while greatly improved, had not completely abated at the time of discharge,
but that Petitioner “no longer requires the skilled intervention of a therapist.” Ex. 9 at 55.
Thus, the evidence in the record allows me to find that Petitioner’s symptoms more likely
than not continued to persist for at least one more month, which would satisfy the severity
requirement. However, I note that despite a finding of entitlement, the record reflects a
mild SIRVA which did not require surgery and was managed well enough through PT and
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a HEP that Petitioner did not seek any additional formal treatment, and any damages that
may be awarded in this case will take these factors into account.
Based upon all of the above, Petitioner has established that he suffered a Table
SIRVA. Additionally, he has satisfied all other requirements for compensation. I therefore
find that Petitioner is entitled to compensation in this case.
Conclusion
In view of the evidence of record, I find Petitioner is entitled to compensation.
A damages order will be entered following the issuance of this ruling to direct the
parties of the next steps in resolving damages.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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