# Durham v. Secretary of Health and Human Services

> United States Court of Federal Claims · May 2, 2023

URL: https://www.frixlaw.com/law-library/cases/9391510

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** May 2, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Daniel T. Horner
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9391510

## How later opinions describe it (automated extraction)

- stating that “there is nothing . . . that mandates that the testimony of a treating physician is sacrosanct—that it must be accepted in its entirety and cannot be rebutted”
- clarifying that “heavy lifting” characterizes the preponderant evidence standard and not any heightened burden of proof.
- 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”

## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1899V
Filed: April 7, 2023
PUBLISHED

Special Master Horner
CARLA DURHAM,

Petitioner, Shoulder Injury Related to
v. Vaccine Administration
(“SIRVA”); Table Injury; Cause-
SECRETARY OF HEALTH AND in-fact; Influenza (“flu”) vaccine
HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC
petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.

DECISION 1

On December 7, 2017, petitioner, Carla Durham, filed a petition under the
National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), 2 alleging that
she suffered “injuries, including Shoulder Injury Related to Vaccine Administration
(“SIRVA”), resulting from adverse effects of an influenza (“flu”) vaccination she received
on December 30, 2016.” (ECF No. 1.) For the reasons set forth below, I conclude that
petitioner is not entitled to compensation.
I. Applicable Statutory Scheme

Under the National Vaccine Injury Compensation Program, compensation
awards are made to individuals who have suffered injuries after receiving vaccines. In

1
Because this document contains a reasoned explanation for the special master’s action in this case, it
will be posted on the United States Court of Federal Claims’ website in accordance with the E-
Government Act of 2002. See 44 U.S.C. § 3501 note (2012) (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 the special master, upon review, agrees that the identified material fits within this definition, it
will be redacted 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-10-34.

1
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, long-standing injury; and has
received no previous award or settlement on account of the injury. Finally – and the key
question in most cases under the Program – the petitioner must also establish a causal
link between the vaccination and the injury. In some cases, the petitioner may simply
demonstrate the occurrence of what has been called a “Table Injury.” That is, it may be
shown that the vaccine recipient suffered an injury of the type enumerated in the
“Vaccine Injury Table,” corresponding to the vaccination in question, within an
applicable time period following the vaccination also specified in the Table. If so, the
Table Injury is presumed to have been caused by the vaccination, and the petitioner is
automatically entitled to compensation, unless it is affirmatively shown that the injury
was caused by some factor other than the vaccination. § 300aa-13(a)(1)(A); § 300 aa-
11(c)(1)(C)(i); § 300aa-14(a); § 300aa-13(a)(1)(B).
As relevant here, 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) as amended by 42 CFR § 100.3. Table Injury
cases are guided by statutory “Qualifications and aids in interpretation” (“QAIs”), which
provide more detailed explanation of what should be considered when determining
whether a petitioner has actually suffered an injury listed on the Vaccine Injury Table.
42 CFR § 100.3(c). To be considered a “Table SIRVA,” petitioner must show that his
injury fits within the following definition:
SIRVA manifests as shoulder pain and limited range of motion occurring
after the administration of a vaccine intended for intramuscular
administration in the upper arm. These symptoms are thought to occur as a
result of unintended injection of vaccine antigen or trauma from the needle
into and around the underlying bursa of the shoulder resulting in an
inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal
structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is
not a neurological injury and abnormalities on neurological examination or
nerve conduction studies (NCS) and/or electromyographic (EMG) studies
would not support SIRVA as a diagnosis . . . . A vaccine recipient shall be
considered to have suffered SIRVA if such recipient manifests all of the
following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and

2
(iv) No other condition or abnormality is present that would explain the
patient's symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 CFR § 100.3(c)(10).
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 ex rel. Moberly v. Sec'y of Health & Human Servs., 592 F.3d 1315,
1322 n.2 (Fed. Cir. 2010) (quoting Shyface v. Sec'y of Health & Human Servs., 165
F.3d 1344, 1352–53 (Fed. Cir. 1999)); Pafford v. Sec'y of Health & Human Servs., 451
F.3d 1352, 1355 (Fed. Cir. 2006). 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).
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, 873
(Fed. Cir. 1991). However, a petitioner may not receive a Vaccine Program award
based solely on her assertions; rather, the petition must be supported by either medical
records or by the opinion of a competent physician. § 300aa-13(a)(1). 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).
In this case, petitioner stresses that she suffered an injury consistent with a
SIRVA Table Injury. Alternatively, petitioner asserts that reliable medical evidence
supports a non-Table shoulder injury caused-in-fact by her vaccination. (ECF No. 64.)
II. Procedural History

This case was initially assigned to the Special Processing Unit (“SPU”) for
expedited resolution based on the allegations of the petition. (ECF No. 5.) Over
several months, petitioner filed evidence, including medical records and affidavits,
marked as Exhibits 1-8. (ECF Nos. 7, 9, 11.) Respondent then advised as of
November 5, 2019, that he intended to defend the case and later filed his Rule 4(c)
Report setting forth his view of the case on March 21, 2019. (ECF Nos. 21, 23.)
Respondent primarily raised the issue that petitioner had a history of back pain, body
aches, and a diagnosis of fibromyalgia, that more likely explained her condition and
prevented her from relying on a Table Injury of SIRVA. (ECF No. 23.)

3
After the filing of respondent’s report contesting the claim, the case was
reassigned out of the SPU and to Special Master Moran. (ECF Nos. 24-25.) While the
case was before Special Master Moran, petitioner filed further medical records marked
as Exhibits 9-11. (ECF Nos. 28, 34.) The case was reassigned to the undersigned on
August 29, 2019. (ECF No. 36.) Thereafter, petitioner filed an expert report by Uma
Srikumaran, M.D., with supporting literature. (ECF No. 43; Exs. 12-18.) Respondent
filed a responsive report by Geoffrey Abrams, M.D. (ECF No. 45; Exs. A-B.) 3

On September 15, 2020, I held a Rule 5 status conference to discuss the expert
reports. (ECF No. 46.) I explained that based on their initial reports, it does not appear
that either expert believed petitioner’s history could be explained by fibromyalgia as had
been raised in respondent’s Rule 4 report. I noted, however, that respondent’s expert
had instead raised an issue with respect to cervical radiculopathy and cervical
spondylosis. (Id.) I further explained:

While each expert report highlights certain findings that favor the etiology
favored by that expert, neither report adequately addresses whether any of
the findings or notations in the medical records are potentially confounding.
Nor do the experts explicitly discuss the considerations at issue in
distinguishing pain associated with a shoulder versus cervical etiology.

(Id. at 1-2.) I attached as Court Exhibit I a review article by Bokshan et al. that
discussed the challenges at issue and further noted that petitioner’s treating physician,
Dr. Drabicki, appeared unwilling to rule out either a cervical condition or impingement
syndrome. (Id. at 2 (citing Ex. 9, p. 3).) I invited both experts to address the Bokshan
article and to also specifically address specific notations within the medical records. (Id.
at 2-3.)

Petitioner then filed a supplemental report by Dr. Srikumaran with further
supporting literature on January 6, 2021. (ECF No. 49; Exs. 19-25.) Respondent filed a
responding supplemental report by Dr. Abrams on May 6, 2021. (ECF No. 52; Ex. C.)
A follow up status conference was held on October 22, 2021. (ECF No. 56.)

During the October 2021 status conference, I advised the parties that I viewed
Dr. Srikumaran’s supplemental report as conceding that petitioner could not satisfy the
requirements of a Table SIRVA due to his agreement that petitioner’s presentation was
at least partly explained by cervical radiculopathy, albeit cervical radiculopathy he
believed to be sequela of her shoulder injury. I indicated that this may prevent petitioner
from satisfying SIRVA QAI prong 4 (which discusses evidence of cervical radiculopathy)
but would also in any event prevent petitioner from satisfying SIRVA QAI prong 3 (which
requires the condition be limited to the affected shoulder). (ECF No. 56, pp. 1-2.)
Further to that, I discussed several points the parties should consider with respect to an
alternative cause-in-fact claim. (Id. at 2-3.)

3
Respondent did not file the supporting literature, marked as Exhibit A, Tabs 1-8, until October 30, 2021.
(ECF No. 57.)

4
Subsequently, petitioner filed a status report on December 3, 2021. (ECF No.
59.) Petitioner expressed strong disagreement with the undersigned’s preliminary
analysis but felt legal briefing and an entitlement hearing would be more productive than
further expert reports. (ECF No. 59.) In response, I noted that the specific concerns
raised in petitioner’s status report were primarily legal rather than medical. Accordingly,
I indicated that I was not persuaded that a hearing is necessary and instructed petitioner
to provide a legal brief in support of her contention that she is entitled to compensation,
addressing both her Table and non-Table contentions. (ECF No. 60.) I allowed
petitioner to accompany her written brief with a supplemental report by Dr. Srikumaran.
I also noted that petitioner could renew her request for a hearing within her brief.
However, I advised that if petitioner’s request for a hearing is denied, then the brief
would constitute her written submission pursuant to Vaccine Rule 8(d). (Id. at 2.)

Thereafter, petitioner filed a second supplemental report by Dr. Srikumaran (Exs.
26-27) and a written brief styled as a “prehearing submission.” (ECF Nos. 63-64.)
Based on my review of that submission, I confirmed in a subsequent order that I would
resolve this case without a hearing and that petitioner’s written submission shall
constitute her opening brief pursuant to Vaccine Rule 8(d). (ECF No. 65.) Respondent
subsequently filed his response accompanied by a second supplemental report by Dr.
Abrams on August 8, 2022. (ECF Nos. 69-70; Ex. D.) Petitioner then filed a reply
accompanied by a third supplemental report by Dr. Srikumaran and four additional
medical articles. (ECF Nos. 72, 74-75; Exs. 28-32.)

In light of the above I have determined that the parties have had a full and fair
opportunity to present their cases and that it is appropriate to resolve this issue without
a hearing. 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) (noting that “special masters
must determine that the record is comprehensive and fully developed before ruling on
the record”). Accordingly, this matter is now ripe for resolution.

III. Factual History

Petitioner was 45 years old at the time of the subject vaccination, which she
received in her left arm on December 30, 2016. (Ex. 1, p. 1.) Respondent stresses that
at that time she had a history significant for anxiety, depression, lower back problems,
pre-menstrual dysphoric disorder, and smoking. (ECF No. 70, p. 4 (citing Ex. 3, p. 23;
Ex. 4, p. 1; Ex. 6, p. 1).) Petitioner states in her affidavit that she believed her injection
was improperly placed (too high) and that she felt a “strange sensation” when the
vaccine was injected. (Ex. 7, p. 1.) She states that she began to feel aching in her
deltoid that evening and that her pain and discomfort worsened progressively over
several weeks. (Id.)

About one month later, on January 26, 2017, petitioner presented to the
emergency department with a complaint of left upper arm pain. (Ex. 2, p. 2.) The chief
complaint reports that “pt states that she had a flu vaccine at Rite Aid 5 weeks ago.
She states that it ‘didn’t feel right’ at the time. She experienced pain immediately.

5
Today she noticed numbness in her left hand and hot inside her arm.” (Id. at 4.) The
history of present illness further explains that

Following flu shot 5 weeks ago patient states that she has been getting
progressively worsening left-sided shoulder and arm pain with
radiculopathy and numbness radiating into her left hand. She states the
numbness is most profound in her middle finger. She also states there is a
warm feeling inside her left upper arm. She admits to weakness associated
with this and she has decreased range of motion in all planes . . . She states
that she believes due to compensating for her arm pain her shoulder and
left side of her neck have begun to hurt as well.

(Id. at 5.) Physical exam by Dr. Joseph Snatchko showed limited active and passive
range of motion of the left shoulder in all planes along with diminished sensation in her
1st, 3rd, and 5th fingers consistent with a C6-8 dermatomal distribution. She was also
tender to palpation at the deltoid and supraspinatus, but had no point tenderness at the
cervical spine. (Id. at 7.) Shoulder X-rays were negative. (Id.) The assessment was
left shoulder pain with “symptoms potentially due to injury to lateral cutaneous axillary
nerve, but given degree of pain and limited range of motion with numbness in hand,
suspect possible involvement of cervical nerve roots.” (Id. at 8.)

Petitioner then presented to orthopedist Edward Birdsong, M.D., on February 1,
2017. 4 (Ex. 5, p. 7.) Petitioner provided a history of left shoulder pain following her
prior flu vaccination, but this time denied any numbness or tingling in the hand. (Id.)
Physical exam of the left shoulder showed full strength of the deltoid, rotator cuff, and
biceps and triceps, but limited active range of motion and pain with passive range of
motion. (Id. at 9.) Neer and Hawkins signs were positive. 5 (Id.) Petitioner was
diagnosed with myositis 6 of the left shoulder and prescribed a Medrol Dosepak and
instructed to follow up in two weeks. (Id.) Petitioner returned to Dr. Birdsong on
February 22, 2017. (Ex. 11, p. 1.) He noted her pain was improving with the Dosepak,
but not entirely resolved. (Id.) However, he also noted that she was now complaining
of “having several different areas of myalgias and some arthralgias as well.” She was

4
In fact, she was seen by a resident, Alan Slipak, M.D., supervised by Dr. Birdsong. (Ex. 5, p. 7.)
5
The Neer Impingement Test “is a test designed to reproduce symptoms of rotator cuff impingement
through flexing the shoulder and pressure application. Symptoms should be reproduced if there is a
problem with the supraspinatus or biceps brachii.” Neer Impingement Test, WIKIPEDIA,
https://en.wikipedia.org/wiki/Neer_Impingement_Test (last accessed Apr. 7, 2023). A positive Hawkins-
Kennedy test is indicative of an impingement of all structures that are located between the greater
tubercle of the humerus and the coracohumeral ligament.” Hawkins-Kennedy test, WIKIPEDIA,
https://en.wikipedia.org/wiki/Hawkins%E2%80%93Kennedy_test (last accessed Apr. 7, 2023). The
impinged structures include the supraspinatus muscle, teres minor muscle, and the infraspinatus muscle.
Id.
6
Myositis is “inflammation of a voluntary muscle.” Myositis, DORLAND’S MEDICAL DICTIONARY ONLINE
https://www.dorlandsonline.com/dorland/definition?id=32923 (last accessed Apr. 7, 2023).

6
still tender to palpation at the left deltoid. Dr. Birdsong recommended a consultation
with a sports medicine specialist. (Id.)

On March 6, 2017, petitioner saw physical medicine and rehabilitation specialist
Sarah Hagerty, D.O., for left arm pain. (Ex. 5, p. 13.) Petitioner described left arm pain
beginning post-vaccination, but also “report[ed] whole-body pain that has been going on
for several years.” (Id.) On physical exam petitioner reported tenderness over the
lateral aspect of the arm along her deltoid, but no cervical spinal tenderness. (Id. at 15.)
She reported no sensation changes in her extremities and had intact sensation to light
touch as well as intact reflexes. She had a negative Spurling’s test 7 and no pain with
cervical extension. (Id.) Dr. Hagerty assessed both left arm pain beginning after the flu
vaccination and fibromyalgia. (Id. at 16.) She was prescribed gabapentin and
recommended to finish the course of steroids initiated by Dr. Birdsong. (Id.)

Petitioner was not seen again for several months until she returned to Dr.
Birdsong’s office on August 2, 2017, and was seen by Physician Assistant Fickner. (Ex.
11, p. 2.) Petitioner reported that she had discontinued the gabapentin because it made
her feel sick and was instead managing with ibuprofen. (Id.) On physical examination,
petitioner continued to be tender over the lateral aspect of her left deltoid and also at
some aspects of her right shoulder. She had left deltoid pain with resisted abduction of
the shoulder and pain and “near full” range of motion limited by pain at the last 10-15
degrees of forward elevation and lateral abduction. She had full painless internal and
external rotation of the left shoulder but painful rotator cuff strength testing. Her
diagnosis remained myositis of the left shoulder, but with an additional assessment of
fibromyalgia and tendonitis of the long head of the biceps. (Id. at 2-3.) She was given a
further Medrol Dosepak for inflammation and also prescribed Flexeril to help reduce
spastic discomfort. (Id. at 3.) A physical therapy referral was provided, and petitioner
was otherwise instructed to follow up as needed. (Id.)

Petitioner did not seek care for her shoulder complaint again until March 26,
2018, when she presented to orthopedist Raymond Drabicki, M.D. (Ex. 9, p. 1.) In the
interim, petitioner was seen by Dr. Neuschwander on August 10, 2017, for her lower
back pain and by Jeffrey Hein, M.D., for an annual physical. (Exs. 6, 8.) Although the
fact of her shoulder condition is noted in the histories she provided to Drs.
Neuschwander and Hein, no relevant evaluations were conducted. (Id.)

When petitioner presented to Dr. Drabicki for the first time in March of 2018, she
reported a one-year history of left shoulder pain following her vaccination and further
indicated that “[i]t radiates at times down from the neck all the way down into the hand.”
(Ex. 9, p. 1.) Review of systems indicated a history of joint pain along with muscular
weakness, stiffness, and pain. (Id. at 2.) On physical exam petitioner had positive
Spurling’s on both the right and left. She was not tender at the acromioclavicular joint
and she had full range of motion of her shoulder, but she did have positive Neer and

7
The Spurling sign is a type of cervical compression test to assess radicular pain. It is positive when pain
arises in the neck. Spurling’s test, WIKIPEDIA, https://en.wikipedia.org/wiki/Spurling%27s_test (last
accessed Apr. 7, 2023).

7
Hawkins tests. (Id.) An X-ray of her shoulder was unremarkable, and an X-ray of her
cervical spine showed degenerative changes with disc space narrowing at C6-7. The
impression was other spondylosis, 8 cervical region, and left shoulder pain. (Id.)
However, Dr. Drabicki indicated a differential diagnosis including impingement
syndrome, Parsonage Turner, and cervical spondylosis with possible mild
radiculopathy. He recommended an MRI of both the shoulder and cervical spine,
indicating that “[m]y suspicion is she may have some radicular issues due to the
arthrosis in the cervical spine and therefore pain may be multifactorial in nature.” (Id. at
3.)

No further records were filed.

IV. Expert Reports

a. Petitioner’s Expert, Orthopedist Uma Srikumaran, M.D., MBA, MPH 9

As explained in the procedural history, Dr. Srikumaran has provided four reports
in this case. (Exs. 12, 19, 26, 28.)

i. First Report

In this first report, Dr. Srikumaran provides his recitation of the relevant medical
history and primarily discusses why he opines that petitioner’s history satisfies the four
criteria for establishing a Table SIRVA. (Ex. 12, pp. 2-6.) He acknowledges petitioner’s
history of back pain, but asserts that she has no prior history of shoulder dysfunction.
Further, he indicates that petitioner consistently reported an immediate onset of post-
vaccination shoulder pain. (Id. at 4-5.) Dr. Srikumaran asserts that petitioner’s
condition was limited to her affected shoulder, highlighting findings from Drs. Birdsong’s
and Hagerty’s records that he notes to be inconsistent with cervical radiculopathy. He

8
Spondylosis denotes “degenerative spinal changes due to osteoarthritis.” Spondylosis, DORLAND’S
MEDICAL DICTIONARY ONLINE
https://www.dorlandsonline.com/dorland/definition?id=467&searchterm=spondylosis (last accessed Apr.
7, 2023).
9
Dr. Srikumaran serves as an associate professor in the Shoulder Division at the Johns Hopkins School
of Medicine and serves as the Shoulder Fellowship Director and Chair of Orthopaedic Surgery for the
Howard County General Hospital. (Ex. 10, p. 1.) He also serves as the Medical Director of the Johns
Hopkins Musculoskeletal Service Line in Columbia, Maryland. (Id.) Each year Dr. Srikumaran sees
approximately 2500-3000 patients for shoulder issues and performs 400-500 shoulder surgeries annually.
(Id.) He has treated approximately ten to twelve patients with shoulder dysfunction after vaccination in
the past five years. (Id.) Dr. Srikumaran received his medical degree from Johns Hopkins School of
Medicine in 2005. (Ex. 11, p. 1.) He completed his orthopaedic residency at Johns Hopkins Hospital and
completed a shoulder surgery fellowship at Massachusetts General Hospital. (Id.) Dr. Srikumaran is
board certified in orthopaedic surgery. (Id. at 10.) He peer-reviews journal articles for several
orthopaedic journals including The Journal of Bone & Joint Surgery, Orthopedics, Clinical Orthopedics
and Related Research, and The Journal of Shoulder and Elbow Surgery. (Ex. 10, pp. 1-2.) Dr.
Srikumaran was selected to serve on the Shoulder and Elbow Content Committee for the American
Academy of Orthopaedic Surgery. (Id.)

8
stresses that Dr. Birdsong diagnosed myositis of the left shoulder, which is a localized
condition. (Id. at 5.) He further stresses that Dr. Hagerty’s fibromyalgia diagnosis
constituted a separate condition from the shoulder condition. (Id.) He opines that
neither back pain nor fibromyalgia would explain petitioner’s shoulder symptoms. (Id.)
Further to this, Dr. Srikumaran lays out, at least briefly, an opinion based on the Althen
test for causation in fact. (Id. at 6-7.)

ii. Second Report

In his second report, Dr. Srikumaran responds to Dr. Abrams’s first report as well
as my Scheduling Order of September 15, 2020. (Ex. 19, p. 1.) First, Dr. Srikumaran
agrees that fibromyalgia was present (or at least diagnosed) but reiterates his
contention that it does not explain petitioner’s shoulder symptoms. (Id.) Second, Dr.
Srikumaran agrees that “there is some inconsistent evidence suggestive of cervical
radiculopathy in the medical record and this can complicate diagnosis.” (Id.) Again,
however, he opines that it does not explain petitioner’s shoulder symptoms and he
further notes that it would not be unusual for both cervical and shoulder conditions to
exist simultaneously. (Id. at 1-2.) Dr. Srikumaran notes that the Bokshan article at
Court Exhibit I indicates that shoulder impingement may occur in up to 24% of patients
with cervical radiculopathy. (Id. at 2.)

Further to this, Dr. Srikumaran provides a list of the types of findings one would
expect in cases of shoulder pathology on the one hand and cervical or neurologic
pathology on the other. (Id.) He quotes language from Bokshan that “[i]n more
diagnostically complex cases, patients with cervical pain may have positive provocative
shoulder test results” and further notes that the proposed mechanism in such cases is
spasming in the muscles connecting the neck and shoulder. (Id. at 3.) He opines that it
is typical for patients with shoulder pain to adjust their shoulder in response to pain such
that these muscles are activated and result in neck pain. (Id.) He cites papers by
Hawkins et al., and Manifold and McCann, and Gorski and Schwartz, that he indicates
show a majority of cases with coexisting neck and shoulder pain were alleviated by
treatment of the shoulder rather than the neck. (Id. at 3-4 (citing Richard J. Hawkins et
al., Cervical Spine and Shoulder Pain, 258 CLINICAL ORTHOPAEDICS & RELATED RSCH.
142 (1990) (Ex. 21), Stephen G. Manifold & Peter D. McCann, Cervical Radiculitis and
Shoulder Disorders, 368 CLINICAL ORTHOPAEDICS & RELATED RSCH. 105 (1999) (Ex. 25),
and Jerrold M. Gorski & Lawrence H. Schwartz, Shoulder Impingement Presenting as
Neck Pain, 85-A J. BONE & JOINT SURGERY 635 (2003) (Ex. 20)).)

In petitioner’s case, Dr. Srikumaran cites the following as supportive of a
shoulder-related etiology for her symptoms: aching, constant pain high in the deltoid
affecting sleep (citing Ex. 7, p. 1; Ex. 2, p. 5); a physical exam inclusive of limited active
and passive range of motion in all planes, decreased sensation, and tenderness at the
deltoid and supraspinatus but not the cervical spine (citing Ex. 2, p. 7 and Ex. 5, p. 9;
Ex. 5, p. 15 (for tenderness)); denial of numbness or tingling in the hand (citing Ex. 5, p.
7); and positive Neer and Hawkins tests, but negative Spurling’s test (citing Ex. 5, p. 9;
Ex. 9, p. 2). He cites the following as more consistent with cervical radiculopathy:

9
radiating pain to the wrist (citing Ex. 7, p. 2); numbness in the left hand and specifically
the middle fingers (citing Ex. 2, p. 5); complaints of neck pain and stiffness (citing Ex. 2,
p. 6 (review of systems)); diminished sensation in the fingers on physical exam (citing
Ex. 2, p. 8); a physical exam inclusive of a positive Spurling’s test with full range of
motion of the shoulder (citing Ex. 9, p. 2); and X-rays showing cervical spinal
degeneration with disc narrowing at C6-7 (citing Ex. 9, p. 2). (Ex. 19, p. 4.)

Thus, Dr. Srikumaran opines that petitioner had both cervical radiculopathy and
shoulder pathology. (Id. at 4.) However, he disagrees that cervical radiculopathy
explains all of her symptoms. He notes that the medical records document that
petitioner herself reported her shoulder pain as leading to subsequent neck pain. (Id. at
4-5.) Dr. Srikumaran asserts that “it is not simply the presence of another condition
(cervical radiculopathy) that invalidates a SIRVA claim, but rather that the other
condition can explain the patient’s constellation of symptoms.” (Id. at 5.) However, he
also opined that “I believe the vaccination triggered and exacerbated a pre-existing
cervical degenerative condition.” (Id.) Specifically, he opines that the vaccine antigen
initiated inflammation at or near the bursa or synovium of the joint. This caused the
shoulder pain. The shoulder pain in turn aggravated the previously asymptomatic
cervical disc degeneration due to petitioner’s compensating posture. (Id.)

Dr. Srikumaran continues to contend that petitioner’s history meets the Table
requirements for SIRVA, but also provides a more detailed explanation of the literature
supporting the idea that a vaccine can cause-in-fact shoulder pain. (Id. at 7-10.)

iii. Third Report

In his third report, Dr. Srikumaran responds to Dr. Abrams’s second report as
well as the Scheduling Order of October 22, 2021. Dr. Srikumaran further stresses that
the presence of both shoulder pathology and cervical radiculopathy does not
automatically preclude the presence of a discrete SIRVA. (Ex. 26, p. 1.) He indicates
that he interprets the fourth SIRVA criterion as allowing for some overlapping conditions
so long as they do not explain all of the relevant symptoms or constitute a better
explanation of the constellation of symptoms. (Id. at 1-2.) He indicates that “I
acknowledge that cervical radiculopathy and fibromyalgia are possible complicating
diagnoses in this case, however they are far less likely than SIRVA to be the cause of
petitioner’s shoulder pain when considering all the facts of the case including timing.
Based on the record as a whole, I am very comfortable placing the probability of a
SIRVA injury in this case being well over 50%.” (Id. at 2.) Further, Dr. Srikumaran
opines that petitioner met the third SIRVA criterion because her pain and reduced range
of motion were initially limited to her shoulder and only later led to the additional cervical
radiculopathy symptoms. (Id.)

Finally, Dr. Srikumaran also provides an explanation of why he does not find the
American Association of Orthopedic Surgeons (“AAOS”) position statement cited by Dr.
Abrams to be authoritative. (Id. at 4.) That position statement suggests there is a lack
of good evidence that vaccines cause shoulder injuries and charges the concept as post

10
hoc, ergo propter hoc fallacy. (Ex. C, Tab 2.) However, Dr. Srikumaran stresses that
the AAOS itself disclaims its position statements as “not a product of a systematic
review.” (Ex. 26, p. 4.)

iv. Fourth Report

The fourth and final report prepared by Dr. Srikumaran is in response to Dr.
Abrams’s final report as well as to respondent’s response to petitioner’s opening brief
on entitlement. (Ex. 28.) In this final report, Dr. Srikumaran suggests that the major
point of disagreement in the case is whether SIRVA can occur in the presence of
coinciding fibromyalgia and cervical radiculopathy. He asserts that the presence of
these conditions “does not mean that SIRVA would be impossible to occur” and further
stresses that he believes the time course of events is more consistent with SIRVA. (Id.
at 1.) Dr. Srikumaran summarizes his view of the case as follows:

In conclusion, it is my position based on the totality of medical record
evidence, that the vaccination is the most likely cause of intrinsic shoulder
pathology (bursitis, subacromial impingement, and capsulitis) and that in
turn activated a previously asymptomatic cervical radiculopathy due to
compensatory muscle use, muscle imbalances and postural changes. I
believe that there is a strong temporal relationship that is supported by the
medical record, as I have highlighted above. The temporal relationship is
always considered when taking a history from a patient and in complex
cases such as this, it cannot be dismissed in determining which structure is
responsible for the sequela of events.

(Id. at 4.)

b. Respondent’s Expert, Orthopedist Geoffrey Abrams, M.D. 10

Dr. Abrams has prepared three reports for this case. (Exs. A, C, D.)

10
Dr. Abrams serves as Assistant Professor of Orthopedic Surgery at the Stanford University School of
Medicine. (Ex. A, p. 1.) He also holds the appointment of Staff Physician at the Veterans Administration
Palo Alto Health Care Division. (Id.) Dr. Abrams is the Director of Sports Medicine for Stanford University
Varsity Athletics as well as Director of the Lacob Family Sports Medicine Center at Stanford University.
(Id.) He also serves as Team Physician for numerous professional and collegiate sports teams in the San
Francisco Bay Area. (Id.) Dr. Abrams received his medical degree from the University of California San
Diego. (Ex. C, p. 1.) He competed a surgical internship at Stanford University Hospital and Clinics from
2007 to 2008; and completed his residency in 2012 at the same hospital in the Department of Orthopedic
Surgery. (Id.) Dr. Abrams also has a subspecialty certificate in Orthopedic Sports Medicine. (Id. at 2.)
He has a surgical practice focused on orthopedic conditions of the shoulder and authored or coauthored
over sixty peer-reviewed medical articles on various orthopedic topics. (Ex. A, p. 1; Ex. C, pp. 2-8.)

11
i. First Report

In his first report Dr. Abrams provides his review of petitioner’s medical history
and opines that her history is not compatible with the third and fourth SIRVA criteria,
requiring that the injury be limited to the shoulder at issue and that no other condition or
abnormality is present to explain the symptoms. (Ex. A, pp. 1-4.) With regard to the
third criterion, Dr. Abrams simply asserts there is evidence of cervical radiculopathy and
fibromyalgia, suggesting her presentation includes conditions affecting parts of the body
beyond the shoulder. (Id. at 4.) With regard to the fourth criterion, Dr. Abrams explains
that cervical radiculopathy is a common cause of arm and shoulder pain in addition to
neck pain and that fibromyalgia is likewise an established cause of musculoskeletal
pain. (Id. at 6.) In responding to Dr. Srikumaran’s first report, Dr. Abrams stresses that
none of the literature cited by Dr. Srikumaran includes the myositis that was actually
diagnosed by Dr. Birdsong. (Id. at 8.) Instead, he contends that a diagnosis of myositis
is incompatible with the mechanism Dr. Srikumaran proposes of synovial inflammation.
Muscle tissue has no synovium. (Id.)

ii. Second Report

Dr. Abrams’s second report was prepared in response to Dr. Srikumaran’s
second report. (Ex. C, p. 1.) Dr. Abrams contests Dr. Srikumaran’s reliance on Gorski
and Schwartz as explanation of how petitioner’s vaccination could ultimately have led to
cervical radiculopathy. He indicates that all of the study subjects were experiencing
conditions that were “qualitatively” different than what is present in this case. (Id.) With
regard to Dr. Srikumaran’s discussion of what signs and symptoms indicate cervical
versus shoulder pathology, Dr. Abrams stresses that “[w]hile radiating pain to the
hands/fingers or isolated neck pain argue against a shoulder pathology, the presence of
shoulder pain does not rule out cervical-mediated pain.” (Id. at 2.) Dr. Abrams
indicates that many of the symptoms deemed “consistent” with shoulder pathology also
have “significant overlap” with the symptoms of cervical-mediated shoulder pain. (Id.)
Dr. Abrams does acknowledge that the finding of tenderness to palpation around the
shoulder girdle does argue against cervical-mediated shoulder pain, but contends that
this additional finding can be explained by the coexisting fibromyalgia. (Id.) In response
to Dr. Srikumaran’s stressing of the temporal relationship between the vaccination and
onset of symptoms, Dr. Abrams cautions against assuming that association implies
causation. In that regard, he cites the above-referenced AAOS position statement later
criticized in Dr. Srikumaran’s third report. (Id. at 2-3.)

iii. Third Report

Dr. Abrams’s third and final report was prepared in response to Dr. Srikumaran’s
third report. He notes that he has “no doubt that SIRVA is a real clinical entity,” but
challenges Dr. Srikumaran regarding his overlooking of two established diagnoses
(cervical radiculopathy and fibromyalgia) in favor of an undiagnosed SIRVA as a more
likely explanation. (Ex. D, pp. 1, 4.) He stresses that the impingement signs and
reduced range of motion that underly Dr. Srikumaran’s assessment are “notoriously

12
non-specific.” (Id.) In his experience, “[i]t is very common for Orthopedic practitioners
to see patients with a likely diagnosis of cervical spine disease who have pain in their
shoulder and loss of range of motion on exam.” (Id.) Noting that Dr. Srikumaran
acknowledged that petitioner had symptoms of cervical radiculopathy, he suggests that
this necessarily indicates that “at minimum, a component of the shoulder complaints
come from her cervical issues.” (Id. at 2.) Further to that, he suggests that in his own
view the majority of petitioner’s presenting complaints are explained by cervical spine
issues. (Id.) He charges that Dr. Srikumaran’s alternative explanation, that the
injection-related pain in turn resulted in the cervical symptoms, lacks supporting
evidence. (Id.) Based on his own interpretation of the medical records, Dr. Abrams
opines that a more likely explanation is that petitioner initially suffered cervical
radiculopathy/spondylosis and then developed a component of fibromyalgia pain. (Id. at
3.) Dr. Abrams stresses that cervical spinal mediated symptoms do not require any
associated physical event or accident. (Id.) Further, Dr. Abrams indicates that the
cervical X-rays showed degenerative changes that are the “hallmark” of cervical
spondylosis and that are not associated with trauma or event. (Id.)

V. Party Contentions

a. Petitioner’s Opening Brief

Petitioner’s analysis of her alleged Table SIRVA begins with the QAI fourth
criterion that requires that “[n]o other condition or abnormality is present that would
explain the patient’s symptoms.” (ECF No. 64, pp. 8-18.) She characterizes
respondent as contending that “the mere presence of cervical radiculopathy, or
fibromyalgia, entities that can be associated with shoulder pain, act as an absolute bar
to petitioner’s ability to show a Table injury due to being unable to meet Criterion (iv).”
(Id. at 10.) However, noting that asymptomatic degenerative spinal changes are
incredibly common in older individuals, she asserts that this is far too broad of an
interpretation of the regulatory language and would effectively ban broad swaths of the
population from demonstrating a SIRVA. (Id. at 10-11.) Rather, petitioner argues that
the language must be understood more narrowly, precluding a SIRVA only where the
other condition is the better or more probable explanation for the shoulder pain. (Id. at
11.) “In any given vaccine case, it is the duty and responsibility of the Special Master to
carefully review all of the evidence in the record as a whole and determine if the better
or more likely explanation for a petitioner’s shoulder pain is the vaccine he received OR
the radiculopathy, brachial neuritis, mononeuropathies, or any other neuropathy.” (Id. at
12 (emphasis in original).) From that starting point, petitioner argues at length why Dr.
Srikumaran’s opinion should be credited and why neither cervical radiculopathy nor
fibromyalgia better explains petitioner’s symptoms. (Id. at 12-18.)

Regarding the third SIRVA criterion, which requires that “[p]ain and reduced
range of motion are limited to the shoulder in which the intramuscular vaccine was
administered,” petitioner argues that Dr. Srikumaran’s opinion “does not run afoul” of
this requirement despite invoking cervical radiculopathy within his overall assessment.
(Id. at 19.) Petitioner contends that Dr. Srikumaran’s opinion set forth a “direct insult to

13
the shoulder, and limited to the shoulder, that is encompassed in her SIRVA shoulder
injury.” (Id.) She argues that “the presence of radiating pain into the neck and hand
does not obviate the initial insult to the shoulder. The pain that radiated into the neck
was a direct result of the shoulder injury sustained by petitioner. It was not that the
vaccine caused a direct injury to the shoulder and the neck.” (Id. (emphasis in original).)
Petitioner argues that her understanding of the third SIRVA criterion is supported by the
Secretary’s response to public comment included within the final rule adding SIRVA to
the Vaccine Injury Table. (Id. at 19, n.1 (citing 82 Fed. Reg. 6294).) She contends it is
also supported by prior cases. (Id. at 20 (citing Werning v. Sec’y of Health & Human
Servs., No. 18-267V, 2020 WL 5051154, at *7 (Fed. Cl. Spec. Mstr. July 27, 2020);
Rodgers v. Sec’y of Health & Human Servs., No. 18-559V, 2021 WL 4772097, at *6
(Fed. Cl. Spec. Mstr. Sept. 9, 2021)).)

Regarding causation-in-fact, petitioner cites nine prior cases that she suggests
demonstrate that special masters may take judicial notice of the Table Injury of SIRVA
in order to fulfil the medical theory requirement of Althen prong one. (Id. at 21-22.)
However, she also asserts that Dr. Srikumaran’s reports include a discussion of general
causation that satisfies her burden of proof on Althen prong one regardless. (Id. at 22.)
She argues that the logical sequence of cause and effect required by Althen prong two
is satisfied in two ways. First, Dr. Srikumaran has explained, consistent with his
articulated theory, that petitioner “experienced inflammation in her shoulder resulting in
a great deal of pain.” Second, petitioner’s treating physicians attributed her pain to her
vaccination. (Id.)

Under either a Table Injury or a causation-in-fact approach, petitioner asserts
that there is no genuine dispute in this case as to the fact that petitioner had no prior
history of shoulder dysfunction or that she experienced onset of shoulder pain
immediately following her vaccination. (Id. at 8-9, 23.)

b. Respondent’s Response

In contrast to petitioner’s view of the record evidence, respondent contends that
petitioner’s condition is better explained by her cervical region radiculopathy,
degenerative disc disease, and fibromyalgia. (ECF No. 70, p. 9.) Respondent asserts
that petitioner “has not established an independent SIRVA-like injury” and that her
multiple other confirmed diagnoses “more likely than not fully account for her shoulder
pain.” (Id. at 9.) Thus, respondent argues, based on his assessment of the medical
records and Dr. Abrams’s expert opinion, that petitioner has not preponderantly satisfied
SIRVA criterion four. (Id. at 9-11.) Relatedly, regarding the third SIRVA criterion,
respondent contends that the medical records show that “petitioner’s symptoms were
never limited to the shoulder, but rather always included symptoms outside the
shoulder.” (Id. at 11-12.)

Regarding causation-in-fact, respondent stresses that “SIRVA” is a term of art
used for purposes of creating the Table Injury and not a specific medical condition. (Id.
at 12.) Respondent asserts that an Althen analysis is not possible without the

14
identification of a specific injury. (Id. at 13.) Respondent argues that it is not
appropriate for a special master to take judicial notice of a Table Injury in order to
establish a causal theory for causation-in-fact. (Id. at 14 (citing Grant v. Sec’y of Health
& Human Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992)).) Respondent contends that
the medical literature cited by Dr. Srikumaran does not preponderantly establish a
causal theory. (Id. at 16-17.) Regarding the logical sequence of cause and effect under
Althen prong two, respondent contends that petitioner’s own clinical course is not
consistent with the theory Dr. Srikumaran described, especially given the lack of any
diagnosed shoulder pathology and in the presence of other conditions as explained by
Dr. Abrams. (Id. at 17-22.) With regard to Althen prong three, respondent contends
that when distinguishing petitioner’s arm pain from her shoulder pain, there is not
preponderant evidence that her shoulder pain as opposed to arm pain began within 48
hours of her vaccination. (Id. at 23-24.)

c. Petitioner’s Reply

In response to respondent’s position, petitioner suggests that “there is no dispute
that petitioner has been diagnosed with cervical radiculopathy, fibromyalgia, and
cervical spondylosis. The legal issue is whether these centrally mediated pain
syndromes are the source of petitioner’s shoulder symptomology.” (ECF No. 74, p. 2
(emphasis in original).) “Given petitioner’s striking symptoms and the close temporal
association between those symptoms and her vaccination, a SIRVA injury is the most
logical conclusion.” (Id. at 3.) Petitioner also provides further detail as to why her view
of the record evidence contrasts with that of respondent and supports her burden of
proof. (Id. at 3-10.)

VI. Discussion

a. Table SIRVA

i. Petitioner is required to show there is no history of pain,
inflammation, or dysfunction of the affected shoulder

Although respondent does raise petitioner’s diagnoses of cervical disc
degeneration and fibromyalgia as relevant preexisting conditions that explain
petitioner’s post-vaccination presentation (ECF No. 70, p. 9), these conditions do not
represent prior inflammation or dysfunction of the shoulder itself. Nor does respondent
offer any evidence that petitioner ever presented with specific complaints of shoulder
pain related to these conditions prior to vaccination. Accordingly, petitioner has
satisfied the first SIRVA criterion.

ii. Petitioner is required to show that the pain occurred within the
specified timeframe

The specified timeframe on the Vaccine Injury Table for SIRVA is 48 hours post-
vaccination. 42 CFR § 100.3(a). Petitioner argues the immediate post-vaccination

15
onset of her shoulder pain is clear. (ECF No. 64, pp. 8, 23.) Respondent argues that
petitioner suffered immediate arm pain, but not necessarily shoulder pain. (ECF No. 70,
pp. 23-24.) Respondent’s hesitation in equating arm and shoulder pain is
understandable in this case given Dr. Birdsong’s subsequent diagnosis of myositis.
However, when petitioner first presented for care, it was documented that she had been
experiencing five weeks of “left-sided shoulder and arm pain.” (Ex. 2, p. 5.) This places
the onset of both arm and shoulder pain at the origin of her condition. Although her
affidavit only specifies “deltoid” pain as of the day of her vaccination (Ex. 7, p. 1), I am
not persuaded that the affidavit contradicts this initial treatment record. Petitioner again
attributed the onset of shoulder pain to her vaccination when seeking treatment with Dr.
Birdsong’s office and Dr. Drabicki. (Ex. 5, p. 7; Ex. 9, p. 1.) Thus, considering the
record as a whole, petitioner has satisfied the second SIRVA criterion.

iii. Petitioner is required to show that the pain and reduced range of
motion are limited to the shoulder

With regard to the third SIRVA criterion, petitioner stresses that the government
addressed this QAI criterion in response to public comment. (ECF No. 64, n. 1 (quoting
82 Fed. Reg. 6294 (Jan. 19, 2017)).) For clarity and context, the comment summary
and response are worth quoting in full:
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.

82 Fed. Reg. 6294, 6296.

As I have indicated in prior cases, the government’s comment response reveals
that the third SIRVA criterion is intended to ensure that SIRVA claims are limited to

16
instances in which “the condition is localized to the shoulder in which the vaccine was
administered” (emphasis added). Thus, 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 v. Sec’y of Health & Human Servs., No. 18-
13V, 2022 WL 779666, at *15 (Fed. Cl. Spec. Mstr. Feb. 15, 2022). The Chief Special
Master has reached the same conclusion on multiple occasions. E.g., Cross v. Sec’y of
Health & Human Servs., No. 19-1958V, 2023 WL 120783, at *7 (Fed. Cl. Spec. Mstr.
Jan. 6, 2023) (finding that “despite the notations of pain extending beyond the shoulder,
Petitioner’s injury is consistent with the definition of SIRVA and there is not
preponderant evidence of another etiology”); K.P. v. Sec’y of Health & Human Servs.,
No. 19-65V, 2022 WL 3226776, at *8 (Fed. Cl. Spec. Mstr. May 25, 2022) (holding that
“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”); Werning v. Sec'y of Health & Human Servs., No. 18-0267V, 2020
WL 5051154, at *10 (Fed. Cl. Spec. Mstr. July 27, 2020) (finding that a petitioner
satisfied the third SIRVA QIA criterion where there was a complaint of radiating pain,
but the petitioner was “diagnosed and treated solely for pain and limited range of motion
to her right shoulder”)

Petitioner argues that Dr. Srikumaran’s opinion in this case is compatible with the
above-quoted public comment response and consistent with prior cases that have
allowed SIRVA claims even where there are some symptoms beyond the shoulder
itself. I cannot agree.

Petitioner’s medical records clearly document that she had both pain and
sensory symptoms extending from her neck to her hand and that these were prominent
symptoms at both her initial and final presentations. (Ex. 2, p. 5 (reporting “arm pain
with radiculopathy and numbness radiating into her left hand” and also that “the left side
of her neck [has] begun to hurt as well”); Ex. 9, p. 1 (reporting pain that “radiates at
times down from the neck all the way down into the hand”).) These symptoms were
contemplated by her treating physicians in attempting to arrive at a unifying diagnosis
for her condition and, as respondent stresses, there was not ultimately any confirmed
final diagnosis of a shoulder joint pathology. In particular, Dr. Drabicki, the final treating
physician to assess petitioner’s overall history, never cleared a cervical etiology for
petitioner’s condition from his differential diagnosis and, in fact, appeared to view a
cervical etiology either as more likely or as the major part of a multifactorial condition.
(Ex. 9, pp. 1-3.) Thus, this is not a case where the medical records reflect that the
symptoms beyond the confines of the shoulder are incidental to what was otherwise
clearly treated as a shoulder injury.

In that context, Dr. Srikumaran himself further opines on petitioner’s behalf that
her cervical signs and symptoms at a minimum “complicate” her diagnosis (Ex. 19, p.
1), but also suggests that the shoulder pathology he opines is present either “activated”
or “exacerbated” her degenerative disc condition itself by causing spasming in the
muscles extending beyond the shoulder to connect the shoulder and neck (Ex. 19, pp.

17
3, 5; Ex. 28, p. 4). Thus, Dr. Srikumaran acknowledges a clear role for cervical
involvement in petitioner’s relevant clinical history. That is, he essentially confirms that
he cannot fully explain petitioner’s presenting symptoms without invoking her cervical
disc degeneration in addition to the shoulder pathology he proposes. Dr. Abrams, for
his part, contends that the cervical condition is actually the more likely explanation for
the shoulder pain itself. (Ex. D, p. 2.) For these reasons, petitioner has neither
established that her outward symptoms of pain and reduced range of motion were
strictly limited to the affected shoulder nor alternatively established that the etiology of
her condition was nonetheless confined to her shoulder consistent with the above-cited
caselaw.

Petitioner argues in effect that she has satisfied the third SIRVA criterion
because Dr. Srikumaran opined that her neck complaints were later sequela of the initial
shoulder injury rather than directly caused by the vaccine; however, I do not see how
this helps petitioner satisfy her burden of proof given the actual language of the QAI. In
particular, although prior decisions have indicated that some incidentally reported
symptoms beyond the confines of the shoulder may not be dispositive of the nature of
the petitioner’s injury, the above-quoted comment response confirms that the Secretary
was prompted to consider the suggestion of broadening the QAI criteria to include “the
shoulder and other parts of the body attributed to that injury,” but rejected that comment
and maintained the originally proposed QAI language. It is difficult to see how this does
not directly answer the argument petitioner advances here.

It is also important to note on this point that the purpose of the SIRVA criteria,
and the QAI overall, is not to identify every case that may conceivably be vaccine-
caused, but to identify cases that are sufficiently uncontroversial as to warrant a
presumption of vaccine causation. Just because petitioner had shoulder pain following
vaccination does not mean that her shoulder pain warrants a presumption of vaccine
causation given her overall clinical presentation. This is the case with many other Table
injuries as well – not every patient diagnosed with a condition listed on the Injury Table
will necessarily meet the specific QAI limitations for that condition. See, e.g., Nuttall v.
Sec’y of Health & Human Servs., No. 07-810V, 2015 WL 691272, at *10 (Fed. Cl. Spec.
Mstr. Jan. 20, 2015) (declining to accept proposed rulemaking as the Table definition of
“encephalitis” because QAI definitions are often narrower than the commonly accepted
medical definitions), mot. rev. denied, 122 Fed. Cl. 821, aff’d, 640 Fed. App’x 996 (Fed
Cir. 2016).

Thus, considering the record as a whole, petitioner has not satisfied the third
SIRVA criterion.

iv. Petitioner is required to show that no other condition or abnormality
is present that would explain the petitioner’s symptoms

With regard to the fourth SIRVA criterion, petitioner’s claim fails for reasons very
similar and closely related to the issues discussed with respect to the third criterion.
The fourth criterion requires that “[n]o other condition or abnormality is present that

18
would explain the patient's symptoms (e.g. NCS/EMG or clinical evidence of
radiculopathy, brachial neuritis, mononeuropathies, or any other neuropathy).” 42 CFR
§ 100.3(c)(10)(iv).
Petitioner characterizes the issue as whether the “mere presence” of cervical
degeneration defeats petitioner’s claim, thereby suggesting a danger that scores of
older individuals suffering asymptomatic spinal disc degeneration would be needlessly
precluded from pursuing SIRVA claims. (ECF No. 64, p. 10.) However, that is clearly
not the context of this case. Dr. Srikumaran has explicitly acknowledged that in this
petitioner’s case there is actual clinical evidence of radiculopathy rather than merely
evidence of degeneration on imaging (Ex. 19, p. 4) and further that it constitutes at least
part of the explanation for her overall presenting symptoms (id. at 4-5). Thus, it is not
the mere presence of asymptomatic cervical radiculopathy that defeats this petitioner’s
Table claim.

Nonetheless, petitioner argues that this clinical evidence of radiculopathy
documented in the medical records and acknowledged by her expert only defeats her
Table injury claim if it is the “better” or “more likely” explanation for her own symptoms.
(ECF No. 64, p. 12.) However, petitioner’s framing of SIRVA criterion four, while not per
se incorrect, may have the effect of obscuring her actual burden of proof as a matter of
emphasis. In order to benefit from a causal presumption as provided by the Vaccine
Injury Table, petitioner must prove by preponderant evidence that her injury fits the
Table definition of that injury. §300aa-13(a); §300aa-11(c). Thus, under the specific
language of the fourth QAI criterion for SIRVA, petitioner herself bears a burden of
establishing that any clinical evidence of cervical radiculopathy that is present is not
meaningful to the existence of her symptoms. That, is, she must prove by preponderant
evidence either (a) that her history is entirely free of, for example, clinical evidence of
radiculopathy, or (b) if not, that the radiculopathy would not explain her symptoms.
Regarding part (a), not even petitioner herself argues that her history is entirely free of
clinical evidence of cervical radiculopathy. (ECF No. 74, p. 2; Ex. 19, pp. 4-5.)
Regarding part (b), petitioner’s treating physicians never ruled out cervical radiculopathy
as a cause of her shoulder pain (Ex. 9) and respondent’s expert affirmatively opines that
her cervical condition is the best explanation of her shoulder pain given the total clinical
picture (Ex. D, p. 2).

On petitioner’s behalf, Dr. Srikumaran initially sought to focus on evidence of
shoulder pathology, but then when pressed by my prior orders to address whether the
evidence of clinical radiculopathy confounded his analysis, he was likewise compelled
to incorporate cervical radiculopathy into his overall assessment of petitioner’s clinical
presentation rather than being able to deny that it is causally relevant to that
presentation. (Ex. 19.) Thus, even petitioner’s own expert opines that the cervical
radiculopathy is an integral part of the overall clinical presentation for which she was
seeking treatment and is alleging to have been vaccine-caused. (Ex. 19, pp. 3, 5; Ex.
28, p. 4.) Although Dr. Srikumaran cites signs of impingement as indicators that at least
some of petitioner’s pain nonetheless originated in her shoulder, Dr. Abrams explains
these signs are nonspecific and not entirely reliable (Ex. D, pp. 1, 4), and Dr.
Srikumaran does not dispute that cervical radiculopathy can cause shoulder pain.

19
Whereas the first SIRVA QAI criterion addresses any history of “pain,
inflammation or dysfunction of the affected shoulder,” the second criterion requires a
particular onset of “pain” specifically, and the third criterion addresses only “pain and
reduced range of motion,” the fourth criterion addresses unspecified “symptoms” more
broadly. Additionally, the examples of relevant conditions provided with the fourth
criterion include “clinical evidence of” radiculopathy etc. 42 CFR § 100.3(c)(10). This
suggests both that the fourth criterion requires a holistic examination of a petitioner’s
complete clinical presentation, and that this presentation may be explained by clinical
evidence of neuropathies that falls short of a confirmed diagnosis. And, again, it is
petitioner herself that bears the burden of showing that any evidence of radiculopathy is
not meaningful. Thus, I am not persuaded by petitioner’s contention that she can satisfy
the fourth SIRVA criterion by having her expert, in effect, cherry pick evidence of
shoulder pathology out of an overall clinical presentation he otherwise acknowledges to
be complicated by a cervical radiculopathy that he agrees is present. But in any event,
even accepting arguendo Dr. Srikumaran’s approach to SIRVA criterion four, his opinion
would still be less persuasive when compared against the medical treatment records
and Dr. Abrams’s competing opinion. (In that regard, see also the discussion of cervical
versus shoulder pathology under Althen prong two below.)
Balancing all of these considerations, petitioner has not met her own burden
under SIRVA QAI criterion four of eliminating her cervical radiculopathy as causally
relevant to her symptoms. Petitioner correctly argues that the fact that a patient has a
neurologic condition, such as a neuropathy or radiculopathy, does not mean they
cannot also suffer a vaccine-caused shoulder injury. (ECF No. 64, p. 12.) However, as
explained above, it is simply not the case that every person suffering shoulder pain will
benefit from a Table presumption of vaccine causation based on their overall clinical
history. Claims involving shoulder pathology in the presence of significant and
potentially confounding neurologic signs and symptoms are better addressed on a
causation-in-fact basis. The fact that Dr. Srikumaran proposes some explanation for the
co-occurrence of cervical and shoulder symptoms in this case does not suggest
otherwise. 11

In the cause-in-fact context, petitioner’s claim can more appropriately be
assessed based on an affirmative showing of a logical sequence of cause and effect

11
In the interest of completeness, I note that in Lang v. Secretary of Health & Human Services, I indicated
that “respondent does not defeat petitioner’s claim simply by noting the presence of shoulder dysfunction
beyond deltoid bursitis” and further required that the condition raised by respondent “wholly explain
[petitioner’s] symptoms independent of vaccination” before it would defeat petitioner’s Table SIRVA claim.
No. 17-995V, 2020 WL 7873272, at *12-13 (Fed. Cl. Spec. Mstr. Dec. 11, 2020). The Lang case,
however, presented a different context. In Lang, respondent argued that petitioner did not suffer a Table
SIRVA because she had underlying degenerative changes within the shoulder joint itself; however,
respondent’s SIRVA rulemaking specifically confirms that SIRVA was intended to capture a broad range
of musculoskeletal shoulder injuries without specificity. Id. I explained that “[i]n presenting her prima
facie case under the Vaccine Injury Table, petitioner does not bear any burden of proving causation
generally or to show that her shoulder pathology can be directly related to her vaccination as causal. It
would be incompatible with the very idea of the Vaccine Injury Table to hold petitioner to a burden of
proving causation to establish a Table Injury.” Id. at n.9. That concern is not implicated in this case.

20
between her vaccination and a shoulder pathology, balanced against the confounding
signs and symptoms, rather than on the process-of-elimination type showing inherent to
a Table SIRVA. This is how I have approached prior cases. Accord Layne v. Sec’y of
Health & Human Servs., 18-57V, 2022 WL 3225437 (Fed. Cl. Spec. Mstr. July 12, 2022)
(ruling in petitioner’s favor on cause-in-fact, but explaining in the Table context that
there is “significant evidence that one or both of petitioner’s diagnosed cervical
radiculopathy and/or suprascapular neuropathy presented as comorbid conditions that
contributed to petitioner’s overall presentation” thereby preventing petitioner from
satisfying SIRVA QAI criteria three and four); Colbert v. Sec’y of Health & Human
Servs., No. 18-166V, 2022 WL 2232210 (Fed. Cl. Spec. Mstr. May 27, 2022) (finding
sufficient evidence of radiculopathy to prevent petitioner from relying on a Table SIRVA
while finding sufficient evidence of vaccine-caused shoulder pathology to support
causation-in-fact). But see Truett v. Sec’y of Health & Human Servs., No. 17-1772V,
2022 WL 17348386 (Fed. Cl. Spec. Mstr. Nov. 1, 2022) (finding cervical radiculopathy
the most likely explanation under either a Table or cause-in-fact analysis).

Thus, considering the record as a whole, petitioner has not satisfied the fourth
SIRVA criterion.

b. Causation-in-Fact

Causation-in-fact is determined by the three-part Althen test. Under the first
Althen prong, petitioner must present a general medical theory explaining that the
vaccine in question “can” cause the type of injury in question. Pafford v. Sec’y of Health
& Human Servs., 451 F.3d 1352, 1355-56 (Fed. Cir. 2006). Under the second and third
prongs, petitioner must present evidence that the vaccine “did” cause petitioner’s own
injury. Id. The third prong asks whether the timing of injury in this specific case aligns
with what would be expected under the general theory presented under Althen prong
one. Id. at 1358. The second Althen prong examines the petitioner’s own medical
history to see if a logical sequence of cause and effect exists to support vaccine
causation. Althen, 418 F.3d at 1278.

i. Althen Prong One

Under Althen prong one, petitioner must provide a “reputable medical theory,”
demonstrating that the vaccine received can cause the type of injury alleged. Pafford,
451 F.3d at 1355-56 (citations omitted). Such a theory must only be “legally probable,
not medically or scientifically certain.” Knudsen v. Sec’y of Health & Human Servs., 35
F.3d 543, 549 (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. 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 [her] theory.
While it does not require medical or scientific certainty, it must still be ‘sound and

21
reliable.’” Boatmon v. Sec’y of Health & Human Servs., 941 F.3d 1351, 1359 (Fed. Cir.
2019) (quoting Knudsen, 35 F.3d at 548-49).

In this case, Dr. Srikumaran’s theory of causation has two parts. First, he opines
that overpenetration of an injection needle in or around the bursa can result in a
prolonged inflammatory reaction that can cause painful bursitis and/or development of
adhesive capsulitis or otherwise cause previously asymptomatic shoulder pathology to
become painful. (Ex. 19, pp. 4-5; Ex. 12, p. 6.) Second, he opines that individuals
suffering shoulder pain can sometimes adjust their posture in such a way that they
aggravate preexisting cervical spine degeneration to provoke symptoms of cervical
radiculopathy. (Id.) Based on my review of the record as a whole, I conclude that
petitioner has preponderantly established a theory sufficient to demonstrate under
Althen prong one that both of these things can happen.

With regard to the first part of Dr. Srikumaran’s theory, petitioner requested that I
take judicial notice of the Table Injury of SIRVA in satisfaction of her Althen prong one
burden. (ECF No. 64, pp. 21-22.) Citing Federal Circuit precedent in Grant v. Secretary
of Health & Human Services, respondent argues that “SIRVA” is merely a term of art
derived from his regulatory rulemaking and that such judicial notice is impermissible as
support for a cause-in-fact theory. (ECF No. 70, p. 14 (citing 956 F.2d 1144, 1148 (Fed.
Cir. 1992)).) In contrast, petitioner cites several prior decisions from other special
masters that she asserts have done just that. (ECF No. 64, pp. 21-22.) Specifically,
special masters have observed with regard to SIRVA that “the very decision to add a
claim [to the Vaccine Injury Table] reflects Respondent’s determination that valid
science supports revising the Table.” E.g., L.J. v. Sec’y of Health & Human Servs., No.
17-59V, 2021 WL 6845593, at *14 (Fed. Cl. Spec. Mstr. Dec. 2, 2021).

It is not necessary to resolve this question in this case, because Dr. Srikumaran
does base his theory on the ability of a vaccine to cause specific inflammatory
conditions such as bursitis or adhesive capsulitis and I conclude that this theory of
causation is preponderantly established regardless of respondent’s rulemaking based
on the record evidence. However, I have cited approvingly to respondent’s reliance on
the Grant precedent in prior cases and noted the importance of not allowing a cause-in-
fact analysis to merely constitute a broadening of the causal presumption available to
Table SIRVA claimants. E.g., Layne, 2022 WL 3225437, at *18. Thus, even if taking
judicial notice of the existence of the Table SIRVA Injury under Althen prong one,
respondent’s contention that petitioner must base her claim on a specific shoulder injury
in order to prevail would still have relevance with respect to Althen prong two given that
petitioner must show under that analysis that petitioner’s own medical history
demonstrates that the vaccine did cause an injury consistent with what Dr. Srikumaran
has theorized.

ii. Althen Prong Three

The third Althen prong requires establishing a “proximate temporal relationship”
between the vaccination and the injury alleged. Althen, 418 F.3d at 1281. A petitioner

22
must offer “preponderant proof that the onset of symptoms occurred within a timeframe
which, given the medical understanding of the disorder's etiology, it is medically
acceptable to infer causation.” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d
1347, 1352 (Fed. Cir. 2008). For the same reasons as discussed with regard to the
timing element of petitioner’s alleged Table injury, I am also persuaded that the onset of
petitioner’s alleged post-vaccination shoulder pain occurred within a timeframe
consistent with petitioner’s theory.

iii. Althen Prong Two

The second Althen prong requires proof of a logical sequence of cause and
effect, usually supported by facts derived from a petitioner’s medical records. Althen,
418 F.3d at 1278; Andreu, 569 F.3d at 1375-77; Capizzano, 440 F.3d at 1326; Grant,
956 F.2d at 1148. In establishing that a vaccine “did cause” injury, the opinions and
views of the injured party’s treating physicians are entitled to some weight. Andreu, 569
F.3d at 1367; Capizzano, 440 F.3d at 1326 (quoting Althen, 418 F.3d at 1280) (stating
that “medical records and medical opinion testimony are favored in vaccine cases, as
treating physicians are likely to be in the best position to determine whether a ‘logical
sequence of cause and effect show[s] that the vaccination was the reason for the
injury’”). However, medical records and/or statements of a treating physician’s views do
not per se bind the special master to adopt the conclusions of such an individual, even if
they must be considered and carefully evaluated. See Section 13(b)(1) (providing that
“[a]ny such diagnosis, conclusion, judgment, test result, report, or summary shall not be
binding on the special master or court”); Snyder v. Sec’y of Health & Human Servs., 88
Fed. Cl. 706, 746 n.67 (2009) (stating that “there is nothing . . . that mandates that the
testimony of a treating physician is sacrosanct—that it must be accepted in its entirety
and cannot be rebutted”). Ultimately, petitioner may support her claim either through
her medical records or by expert opinion. § 300aa-13(a)(1).

Although this petitioner has satisfied Althen prongs one and three, the Federal
Circuit has cautioned that the second Althen prong “is not without meaning.” Satisfying
Althen prongs one and three generally serves largely as a threshold demonstration that
a petitioner’s claim is even possible. The Court explained that

There may well be a circumstance where it is found that a vaccine can
cause the injury at issue and where the injury was temporally proximate to
the vaccination, but it is illogical to conclude that the injury was actually
caused by the vaccine. A claimant could satisfy the first and third prongs
without satisfying the second prong when medical records and medical
opinions do not suggest that the vaccine caused the injury, or where the
probability of coincidence or another cause prevents the claimant from
proving that the vaccine caused the injury by preponderant evidence.

Capizzano, 440 F.3d at 1327 (emphasis in original). Thus, it is well established that in
terms of demonstrating specific causation, temporal association alone is not enough to
satisfy petitioner’s burden of proof. See, e.g., Veryzer v. Sec’ y of Health & Hu man

23
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”); A.Y. by J.Y. v. Sec’y of Health & Human
Servs., 152 Fed. Cl. 588, 595 (2021); Forrest v. Sec’y of Health & Human Servs., No.
10-032V, 2017 WL 4053241, at *18 (Fed. Cl. Spec. Mstr. Aug. 10, 2017); Cozart v. Sec’y
of Health & Human Servs., No. 00-590V, 2015 WL 6746616, at *18 (Fed. Cl. Spec. Mstr.
Oct. 15, 2015), aff’d, 126 Fed. Cl. 488 (2016); Crosby v. Sec’y of Health & Human
Servs., No. 08-799V, 2012 WL 13036266, at *37 (Fed. Cl. Spec. Mstr. June 20, 2012).

Here, the initial part of Dr. Srikumaran’s theory is predicated on the existence of
an inflammatory reaction affecting the internal structures of the shoulder contiguous to
the bursa. (Ex. 12, p. 6 (citing Marko Bodor & Enoch Montalvo, Vaccination-Related
Shoulder Dysfunction, 25 VACCINE 585 (2007) (Ex. 16); S. Atanasoff et al., Shoulder
Injury Related to Vaccine Administration (SIRVA), 28 VACCINE 8049 (2010) (Ex. 14)).)
However, petitioner’s treatment history was not robust, and her treating physicians did
not reach clarity regarding the nature of her condition. Moreover, because petitioner
sought only limited treatment, there are limited objective findings to rely upon. In
particular, there is no evidence petitioner ever pursued the shoulder and spinal MRIs
recommended by Dr. Drabicki to narrow his differential diagnosis. (Ex. 9.) Thus, while
there are some potential signs of shoulder pathology discussed further below, there is
very little by way of diagnosis available to preponderantly support a shoulder pathology
of the type implicated by the first part of Dr. Srikumaran’s medical theory. In fact, those
diagnoses that were strongly considered by the treating physicians mostly do not
comport with Dr. Srikumaran’s theory. Specifically:

• When petitioner first presented to the emergency department, Dr.
Snatchko suspected a neurologic condition, likely involving the cervical
spinal root. (Ex. 2, p. 8.)

• When petitioner followed up with Dr. Birdsong, he diagnosed myositis,
which is inflammation of the muscle rather than the joint. (Ex. 11, p. 1.)
Although Dr. Srikumaran opined that this could constitute a relevant
condition isolated to the shoulder (Ex. 12, p. 5), Dr. Abrams is persuasive
in explaining that it does not point to any suspicion of the type of synovial
inflammation that underlies Dr. Srikumaran’s theory (Ex. A, p. 8).

• I agree with petitioner that Dr. Hagerty’s later diagnosis of fibromyalgia did
not subsume her separate left arm pain; however, nothing in Dr. Hagerty’s
record is any more specific than to note that petitioner had left arm pain
evidenced by subjective report as well as tenderness “over the left lateral
arm along her deltoid musculature.” (Ex. 5, p. 15.) The focus on arm pain
is consistent with the prior myositis diagnosis and no specific exam finding
or diagnosis otherwise implicated the shoulder joint.

• Well into petitioner’s treatment history, Dr. Birdsong’s Physician’s
Assistant added tendonitis of the long head of the biceps to petitioner’s

24
diagnostic assessment. (Ex. 11, p. 3.) This is the only diagnosis
petitioner ever received that might generally be viewed as consistent with
SIRVA. (See Elisabeth M. Hesse et al., Shoulder Injury Related to
Vaccine Administration (SIRVA): Petitioner Claims to the National Vaccine
Injury Compensation Program 2010–2016, 38 VACCINE 1076, 1080,
Tables 4-5 (2020) (Ex. 22) (noting 6.5% of examined SIRVAs had bicep
tendon findings on MRI, though biceps tendonitis does not appear on the
list of initial diagnoses). However, this assessment was never repeated.

• Dr. Drabicki subsequently indicated that impingement syndrome could be
a possibility, but only within the context of a differential diagnosis including
several neurologic conditions and further indicating that “[m]y suspicion is
she may have some radicular issues due to the arthrosis in the cervical
spine and therefore pain may be multifactorial in nature.” (Ex. 9, p. 3.) He
did specifically include cervical spondylosis in his impression, but only
otherwise included unspecified “pain in the left shoulder” in the
impression. (Id. at 2.)

“[I]n patients with concomitant radiculitis and shoulder disease, signs of both
disorders may coexist. The clinician must determine which symptoms are predominant
in the patient’s presentation.” (Manifold & McCann, supra, at Ex. 25, p. 108.) While
there is no question that there are conflicting indicators with regard to a spinal versus
shoulder etiology, Dr. Srikumaran’s willingness to accept the limited signs and
symptoms of a shoulder pathology as dispositive is less persuasive than Dr. Abrams’s
suggestion that they are too non-specific to demonstrate a distinct shoulder injury in this
overall clinical presentation, especially in light of the diagnoses favored by the treating
physicians. The indicators Dr. Srikumaran sees for a shoulder pathology focus in
substantial part on the presence and character of petitioner’s deltoid and shoulder pain
along with limited range of motion and Neer and Hawkins impingement signs. (Ex. 19,
p. 4.) However, without entirely discounting the clinical value of these findings, they are
far less specific to a shoulder pathology than are those competing signs and symptoms
that both experts point to as exclusively indicative of a cervical spinal condition. (Ex. 19,
pp. 4-5; Ex. C, p. 2; Ex. D, pp. 1-2.)

It is true that patients with cervical spinal conditions generally will not have point
tenderness over the shoulder (Manifold & McCann, supra, at Ex. 25, p. 107); however,
the significance of the tenderness to palpation findings is tempered by the fact that
petitioner has two diagnoses – fibromyalgia and myositis – that could explain that
tenderness without implicating the type of inflammatory shoulder joint pathology Dr.
Srikumaran theorizes. It is also the case that cervical spinal spondylosis can cause
myelopathy in addition to radiculitis. (Manifold & McCann, supra, at Ex. 25, p. 107.)
Additionally, Dr. Abrams opines that the signs of impingement are nonspecific. (Ex. D,
p. 1.) In fact, Dr. Srikumaran himself acknowledges that “[i]n more diagnostically
complex cases, patients with cervical pain may have positive provocative test results.”
(Ex. 19, p. 3 (quoting Bokshan, et al., supra at Court Ex. I).) While Dr. Srikumaran
clearly offers this statement for the proposition that neck pain can be referred from the

25
shoulder, he cites literature by Manifold and McCann that also explains that individuals
with cervical spinal radiculitis originating at the fifth or sixth cervical roots can present
with abduction and external rotation findings similar to a rotator cuff tear because nerve
roots at that level innervate the musculature of the cuff and deltoid. (Manifold &
McCann, supra, at Ex. 25, p. 108.) The record is also clear that petitioner’s later
positive Spurling test and prominent symptoms of numbness and tingling extending to
her fingers are indicative only of a cervical etiology. (Ex. 2; Ex. 9; Ex. 19, pp. 4-5; Ex.
C-D.) Moreover, all of this correlates to her cervical spinal X-ray that showed
degenerative changes at the C6-7 level and which constitutes the only available
objective imaging even potentially suggestive of the etiology of petitioner’s condition.
To the extent these cervical spine symptoms were not consistently reported, the
medical literature confirms that the symptoms of spondylotic cervical radiculitis are
generally episodic and with no precipitating event. (Manifold & McCann, supra, at Ex.
25, p. 106.)

I do acknowledge that, consistent with Dr. Srikumaran’s theory, when petitioner
first presented for care she reported that “she believes due to compensating for her arm
pain her shoulder and left side of her neck have begun to hurt as well.” (Ex. 2, p. 5.)
Importantly, however, at the time of her first encounter her cervical spinal symptoms
were prominent. Moreover, the assessment from that encounter still favored a cervical
etiology for petitioner’s condition despite that reported history. (Ex. 2, p. 8.) Nor did any
of petitioner’s other treating physicians ever offer an opinion reflective of Dr.
Srikumaran’s two-part theory. And in any event, absent persuasive evidence to support
the first part of Dr. Srikumaran’s theory, the second part of this theory does not serve to
implicate petitioner’s vaccination in her condition even if her cervical spinal
degeneration was somehow interrelated with a shoulder injury. I have previously
observed that some SIRVA claims will present the difficult situation of pitting a clear
perception by the petitioner of vaccine-related pain against a confounding medical
history that leaves that perception unlikely to be accurate. Truett, 2022 WL 17348386,
at *15. In that context, as unsatisfying as it may be to accept the presence of a
coincidence, a cause-in-fact claim requires petitioner to do the “heavy lifting” of
affirmatively proving, inter alia, a logical sequence of cause and effect demonstrating
petitioner’s vaccination to have been the cause of her injury. Hodges v. Sec’y of Health
& Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (indicating that in the absence of a
Table Injury, “the heavy lifting [of proving causation] must be done by the petitioner, and
it is heavy indeed”); see also Althen, 418 F.3d at 1280 (clarifying that “heavy lifting”
characterizes the preponderant evidence standard and not any heightened burden of
proof.) Here, for all the reasons discussed above, she has not done so.

VII. Conclusion

Petitioner has my sympathy for what she has endured. However, considering the
record as a whole under the standards applicable in this program, petitioner has not
preponderantly established either that her December 30, 2016 flu vaccination resulted

26
in a Table SIRVA or alternatively caused-in-fact a shoulder injury. Accordingly,
petitioner is not entitled to compensation. Therefore, this case is dismissed. 12

IT IS SO ORDERED.

s/Daniel T. Horner
Daniel T. Horner
Special Master

12
In the absence of a timely-filed motion for review of this Decision, the Clerk of the Court shall enter
judgment accordingly.

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9391510. Public record. Not legal advice.