VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-00008
Package ID: USCOURTS-cofc-1_18-vv-00008
Petitioner: Ronnie Duesterheft
Filed: 2018-01-02
Decided: 2021-04-23
Vaccine: influenza
Vaccination date: 2015-09-23
Condition: right shoulder injury
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Ronnie Duesterheft filed a petition alleging that an influenza vaccine received on September 23, 2015, caused a right shoulder injury. His petition was filed on January 2, 2018. Betty Duesterheft was later substituted as the personal representative of Mr. Duesterheft's estate. The petitioner initially sought a finding that the shoulder pain onset occurred within 48 hours of the vaccination, which is a criterion for a Table Injury of SIRVA. However, the Special Master issued a Finding of Fact on February 24, 2021, determining there was insufficient evidence to prove the injury began within the required timeframe. Following this, the petitioner moved to dismiss her own petition, acknowledging that without establishing a Table Injury or proving causation-in-fact under Althen, proceeding would be unreasonable. The Special Master granted the motion to dismiss, concluding that the petitioner failed to establish a prima facie case for entitlement to compensation. The case was dismissed, and judgment was entered against the petitioner.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-00008-0
Date issued/filed: 2021-03-23
Pages: 12
Docket text: PUBLIC ORDER/RULING (Originally filed: 2/24/2021) regarding 43 Findings of Fact & Conclusions of Law. Signed by Special Master Daniel T. Horner. (et) Service on parties made.
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Case 1:18-vv-00008-UNJ Document 45 Filed 03/23/21 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-08V
Filed: February 24, 2021
PUBLISHED
Special Master Horner
BETTY DUESTERHEFT, as Personal
Representative of the ESTATE OF
RONNIE DUESTERHEFT, deceased,
Finding of Fact; Shoulder Injury
Related to Vaccine
Petitioner,
Administration; SIRVA;
v.
Influenza (flu) Vaccine; Onset
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.
FINDING OF FACT1
On January 2, 2018, Ronnie Duesterheft filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012),2 alleging that as a result
of an influenza (“flu”) vaccination that received on September 23, 2015, he suffered a
suffered a right shoulder injury. (ECF No. 1.) On November 8, 2020, Betty Duesterheft
was substituted as petitioner in her capacity as personal representative of Mr.
Duesterheft’s estate. (ECF No. 28.)
Respondent recommended that compensation be denied, arguing, inter alia, that
there is not preponderant evidence that Mr. Duesterheft’s shoulder pain began within a
timeframe that would support a finding of vaccine causation, namely 48 hours for a
1 Because this decision 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 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 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.
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Case 1:18-vv-00008-UNJ Document 45 Filed 03/23/21 Page 2 of 12
Shoulder Injury Related to Vaccine Administration or “SIRVA.” (ECF No. 18.) On July
20, 2020, petitioner moved for finding of fact regarding onset in this case, requesting a
finding that onset of Mr. Duesterheft’s shoulder pain occurred within 48 hours of the
vaccination at issue. (ECF No. 35.)
For the reasons described below, I now issue the below finding of fact. I
conclude that there is not preponderant evidence that Mr. Duesterheft’s right shoulder
pain began within 48 hours of his September 23, 2015 flu vaccination.
I. Procedural History
Mr. Duesterheft filed his petitioner on January 2, 2018, along with supporting
medical records and a Statement of Completion. (ECF Nos. 1, 5.) This case was
originally assigned to the Special Processing Unit (“SPU”). (ECF No. 4.) On December
6, 2018, respondent filed his Rule 4(c) report, recommending against compensation.
(Ex. 18.) Thereafter, this case was reassigned to Special Master Roth. (ECF No. 20.)
Special Master Roth held an initial status conference on March 19, 2019. (ECF
No. 21.) During this conference, Special Master Roth presented her review of the
records and indicated that petitioner’s first documented complaint of shoulder pain was
approximately six months after receiving the flu vaccination. (Id.) Petitioner then
submitted witness affidavits from David Childress and Jo Anne Germer. (ECF No. 22.)
Another status conference was held on October 16, 2019. (ECF No. 25.) During
this conference, the parties discussed proceeding via videotaped deposition in lieu of a
fact hearing regarding the onset issue. (Id.) However, on November 8, 2019, Betty
Duesterheft substituted as petitioner following the death of Mr. Duesterheft. (ECF Nos.
26-27.)
Thereafter, on July 20, 2020, petitioner filed this motion for a finding of fact on the
record regarding the issue of onset. (ECF No. 35.) Respondent filed his response to
petitioner’s motion on September 10, 2020. (ECF No. 37.) No reply was filed.
This case was reassigned to my docket on January 28, 2021. (ECF No. 40.) I
advised that, if the parties were not interested in exploring settlement, I intended to act
on the pending motion based on the existing record. (ECF No. 41.) On February 11,
2021, the parties filed a joint status report indicating that the parties were not interested
in exploring informal resolution in this case prior to the resolution of the pending motion.
This motion is now ripe for consideration.
II. Factual History
a. Medical Records
Prior to the vaccination at issue, Mr. Duesterheft had a history of lymphoma,
anemia, leukocytosis, cough, bronchitis, wheezing, and left lower extremity muscle
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cramping. (Ex. 3, pp. 17-24, 106.) He did not, however, have any shoulder-related
complaints. On December 27, 2012, Mr. Duesterheft fell on his right side while he was
hunting and was treated for right rib pain. (Id. at 33.) During a neurology follow up on
January 2, 2013, slight right foot drop was noted. (Id. at 131.)
On September 23, 2015, Mr. Duesterheft was seen by his primary care
physician, Dr. Kimberly Wheeler, for gout and for a hand tremor attributed to steroid use
for Hansen’s disease and prior chemotherapy. (Ex. 3, p. 14.) His exam was normal
except for mild intention tremor in both hands. At this visit, he received the flu vaccine
at issue in his right deltoid. (Ex. 1.)
On October 26, 2015, about 34 days after his vaccination, Mr. Duesterheft had a
routine oncology exam with Dr. Rene Castillo. (Ex. 3, p. 91-92.) At this appointment,
Mr. Duesterheft denied muscle weakness and did not report any shoulder issues. (Id. at
92.) A physical exam reported generally “[n]o arthritis, joint swelling, or joint pain,” but
without reference to any specific joint(s). (Id.)
On December 9, 2015, about two and a half months after his vaccination, Mr.
Duesterheft presented to a neurologist, Dr. Toan Vu, for a follow-up regarding the
tremors in his hands. (Id. at 87-88.) He denied extremity weakness or numbness and
did not mention any bicep or shoulder issues. (Id. at 88.) The neurologist specifically
documented a motor examination that indicated normal muscle strength of the deltoids,
biceps, and triceps. (Id.)
On January 19, 2016, Mr. Duesterheft presented to his cardiologist, Dr.
Mohamed Eineddin, for a routine visit; according to the review of systems he did not
report muscle aches, weakness, arthralgia, joint pain, back pain, shoulder pain, or bicep
pain. (Id. at 81.) The physical exam did not address his extremities. (Id. at 82-83.)
Mr. Duesterheft first reported shoulder pain to his chiropractor on March 7, 2016,
approximately six months post-vaccination. (Ex. 2, p. 2.) This report was made in the
context of shoulder, neck, and lower back pain. Upon exam, he had a reduced range of
motion; he was diagnosed with radiculopathy. (Id.) Onset of the shoulder pain was not
identified, but the cause of the right shoulder condition was indicated as “reaction to
vaccination.” (Id. at 3.) Two days later, on March 9, 2016, Mr. Duesterheft returned to
his neurologist for a follow-up of tremors. (Ex. 3, p. 80.) He denied weakness or
numbness of his extremities; upon exam, he again had documented normal strength in
his deltoids, biceps, and triceps. (Id.) However, the motor exam notation appears likely
to have been copied over from the December 9, 2015 visit. (Compare Ex. 3, p. 80 to
Ex. 3, p. 88.) In any event, no shoulder complaints were documented. (Id.)
Mr. Duesterheft returned to the chiropractor on March 14, 2016, complaining of
right shoulder pain radiating down to his lower arm. Upon exam, he had a limited range
of motion in his cervical and thoracic spine. (Ex. 2, p. 5.) He presented again to the
chiropractor on March 28, 2016, with continued right shoulder pain radiating into his
lower arm and a limited range of motion. (Id. at 6.)
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On April 27, 2016, Mr. Duesterheft returned to his oncologist, Dr. Castillo, for a
follow-up. (Ex. 3, p. 73.) He reported that his main issue that day was right shoulder
pain despite physical therapy. (Id.) “Mild limited motion in the right upper extremity”
was confirmed on physical examination and an orthopedic follow up was recommended.
(Id. at 75.) No discussion was documented regarding either the cause or onset of the
shoulder pain. Subsequently, Mr. Duesterheft pursued massage therapy for right
deltoid pain from May 31, 2016 to June 30, 2016. (See generally Ex. 8.) On July 15,
2016, Mr. Duesterheft presented to his primary care provider with cough and fever. (Ex.
3, pp. 11-13.) He did not report any shoulder complaints. (Id.)
On July 21, 2016, Mr. Duesterheft presented to an orthopedist and reported right
shoulder pain of a spontaneous onset since September of 2015. (Ex. 5, p. 20.) No
cause for the spontaneous onset of shoulder pain was documented. Physical exam
showed reduced range of motion but was negative for pain with motion. (Id. at 21)
Muscle strength was normal, but there was possible muscle atrophy at the
supraspinatus and infraspinatus. (Id.) X-ray showed mild to moderate glenohumeral
arthrosis with marginal osteophytosis. (Id.) Diagnosis was limited to “Pain in right
shoulder” with a differential diagnosis including rotator cuff tendinopathy or tear, biceps
tendinopathy or tear, glenohumeral arthritis, and adhesive capsulitis. Follow up MRI
was recommended. (Id.)
An MRI was conducted on July 22, 2016. (Ex. 5, p. 24.) The study showed:
moderate glenohumeral degenerative osteoarthritis; age-related degenerative rotator
cuff and proximal biceps tendinosis; medium grade articular surface partial tear at the
insertion of the subscapularis tendon; focal low-grade articular surface and interstitial
partial tears of the supraspinatus tendon; and mild acromioclavicular degenerative
osteoarthritis. (Id. at 24-25.) At a follow-up visit on July 26, 2016, Mr. Duesterheft was
diagnosed with primary osteoarthritis of the right shoulder. (Id. at 17-19.) Again, no
discussion regarding the cause of petitioner’s shoulder pain was documented. Mr.
Duesterheft began physical therapy on August 22, 2016, with an intake diagnosis of
osteoarthritis; however, he reported that his right shoulder pain “began in sept. 2015
after receiving a flu shot.” (Id. at 29-31.)
During a follow-up appointment on September 19, 2016, Mr. Duesterheft’s
orthopedist documented that petitioner reported that he believed that he was given a flu
vaccine too high, and the injection went into the shoulder bursa rather than into the
muscle. (Id. at 13-14.) The orthopedist noted that Mr. Duesterheft’s differential
diagnoses included pain and stiffness from arthritis and pain and stiffness from
adhesive capsulitis, “which may or may not be results of the flu injection as he states.”
(Id. at 15.) Mr. Duesterheft was discharged from physical therapy on September 26,
2016. (Id. at 26-28.)
When Mr. Duesterheft returned for a follow-up visit on December 6, 2016, he
brought literature regarding SIRVA to his appointment. (Id. at 7-8.) According to the
orthopedist, this literature included discussion of needle overpenetration. (Id.) Mr.
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Duesterheft returned to his orthopedist on January 23, 2017, and April 24, 2017. (Id. at
2-7.) No further medical records were filed. Mr. Duesterheft passed away on July 23,
2019, due to natural causes unrelated to this action. (Ex. 14.)
b. Affidavits
i. Ronnie Duesterheft
Mr. Duesterheft submitted two affidavits in this case. The first affidavit was filed
with the petition and indicated that he experienced pain in his right shoulder
“immediately following vaccination,” but was otherwise silent as to the details of his
medical history. (Ex. 9.) Subsequently, after respondent set forth his defense in his
Rule 4 report, Mr. Duesterheft filed a more detailed affidavit on May 20, 2019. (Ex. 13.)
Mr. Duesterheft stated that on September 23, 2015 he received the flu vaccine.
He was standing and the administrator was standing. She was shorter than him and the
shot was given at an upward angle. He had immediate pain and burning. (Ex. 13, p. 1.)
Mr. Duesterheft submits that on the date of vaccination he used both ice and heat over
a period of time for the pain and burning. (Id.) He indicated that he experienced
reduced range of motion and could not fish, hunt, garden, or sleep on his right side,
without pain. He indicated that his shoulder sometimes “is locked” at night and also that
his condition got worse over time. (Id.)
Mr. Duesterheft averred that “I asked each and every Doctor about the pain and
if a flu shot could cause this much pain. Dr. Rene Castillo, Dr. Kimberly Wheeler, and
Dr. Donald Willis all said that they never heard of a flu shot causing this type of pain. I
don’t know why these complains are not noted in my records.” (Id.) He indicated that a
brochure he saw at San Antonio hospital caused him to realize how and why a flu
vaccine can cause a shoulder condition, leading him to bring this to his orthopedist’s
attention on November 21, 2016. (Id. at 2.) Describing his condition, Mr. Duesterheft
concluded that “[t]here is no question in my mind that the flu shot caused this.” (Id.)
ii. Betty Duesterheft
Mrs. Duesterheft filed her affidavit on March 13, 2020, after being substituted as
petitioner. (ECF No. 32; Ex. 16.) She averred that Mr. Duesterheft told her on the date
of the vaccination at issue that it had hurt “more than the flu shot normally did.” (Ex. 16,
p. 1.) She recalled that he attempted to use ice and heat to no avail and when he
showered, he could not reach across his body. (Id. at 1-2.) Mrs. Duesterheft recalled
that following the vaccination her husband could no longer drive and that they cancelled
a trip to go to a great nephew’s wedding because of this. (Id. at 2.) She observed him
to be “in misery” and unable to do normal everyday activities. (Id.) She averred that
after the pain “had not let up the first few days” she “noted on the calendar on
September 27, 2015 that he had a reaction his flu shot, because his pain and issues
had continued.” (Id.) Mrs. Duesterheft could not “remember the exact time he started
considering going to see a doctor about his pain,” but noted that he did eventually see a
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massage therapist and an orthopedic surgeon. (Id.) However, she characterized him
as “presenting for treatment in March of 2016.” (Id.)
iii. David Childress
Mr. Childress is a retired teacher. He knew Mr. Duesterheft for 30 years. They
were good friends, were both part of the Maxwell Community Volunteer Fire
Department, and went to the same church. (Ex. 11, p. 1.) Mr. Childress stated that
petitioner did not say much about the flu shot other than “it hurt like hell after,” that he
spoke to a few doctors who told him they did not believe the flu shot would cause such
pain, and that he found a brochure that said the vaccine can cause pain if not given
correctly. (Id.) Mr. Childress stated that Mr. Duesterheft asked him if he thought the
chiropractor would help, indicating that the chiropractor Mr. Duesterheft ultimately saw
was Mr. Childress’ chiropractor. (Id.) Mr. Childress reported that petitioner later
showed him his range of motion of the right arm and that he could not reach across his
body and had little movement behind his back. (Id.) Mr. Childress affirmed that he and
petitioner never discussed dates. That petitioner never had a problem before the flu
shot and did what he could do at the fire station. (Id.)
iv. Jo Anne Germer
Ms. Germer provides details about petitioner’s standing in the community and
having known him since the 1970s. (Ex. 12, pp. 1-2.) She states that she noticed in
the fall of 2015 that petitioner was not moving his shoulder and seemed to be injured.
(Id. at 1.) He told her he had received a flu vaccine that was extremely painful and that
since the vaccination he did not have range of motion in his right shoulder. (Id.) She
reports that she regularly asked about his shoulder pain and that he had no
improvement and was greatly disappointed by that. She submits that she spoke to him
several times in the month prior to signing her affidavit and he was still dealing with the
pain. (Id. at 1-2.)
III. Standard of Adjudication
The process for making determinations in Vaccine Program cases regarding
factual issues begins with consideration of the medical records. § 300aa-11(c)(2). The
special master is required to consider “all [ ] relevant medical and scientific evidence
contained in the record,” including “any diagnosis, conclusion, medical judgment, or
autopsy or coroner's report which is contained in the record regarding the nature,
causation, and aggravation of the petitioner's illness, disability, injury, condition, or
death,” as well as “the results of any diagnostic or evaluative test which are contained in
the record and the summaries and conclusions.” § 300aa-13(b)(1)(A). The special
master is then required to weigh the evidence presented, including contemporaneous
medical records and testimony. See Burns v. Sec'y of Health & Human Servs., 3 F.3d
415, 417 (Fed. Cir. 1993) (it is within the special master's discretion to determine
whether to afford greater weight to contemporaneous medical records than to other
evidence, such as oral testimony surrounding the events in question that was given at a
later date, provided that such a determination is evidenced by a rational determination).
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Petitioner must prove by a preponderance of the evidence the factual circumstances
surrounding her claim. § 300aa–13(a)(1)(A).
Medical records that are created contemporaneously with the events they
describe are presumed to be accurate and “complete” (i.e., presenting all relevant
information on a patient's health problems). Cucuras v. Sec’y of Health & Human
Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993); Doe v. Sec'y of Health & Human Servs.,
95 Fed. Cl. 598, 608 (2010) ( “[g]iven the inconsistencies between petitioner's testimony
and his contemporaneous medical records, the special master's decision to rely on
petitioner's medical records was rational and consistent with applicable law”), aff'd,
Rickett v. Sec'y of Health & Human Servs., 468 Fed. Appx. 952 (Fed. Cir. 2011) (non-
precedential opinion). This presumption is based on the linked propositions that (i) sick
people visit medical professionals; (ii) sick people honestly report their health problems
to those professionals; and (iii) medical professionals record what they are told or
observe when examining their patients in as accurate a manner as possible, so that
they are aware of enough relevant facts to make appropriate treatment decisions.
Sanchez v. Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *2
(Fed. Cl. Spec. Mstr. Apr. 10, 2013); Cucuras v. Sec'y of Health & Human Servs., 26 Cl
.Ct. 537, 543 (1992) (“[i]t strains reason to conclude that petitioners would fail to
accurately report the onset of their daughter's symptoms. It is equally unlikely that
pediatric neurologists, who are trained in taking medical histories concerning the onset
of neurologically significant symptoms, would consistently but erroneously report the
onset of seizures a week after they in fact occurred”), aff'd, 993 F.2d 1525. As the
Federal Circuit noted, the weight afforded to contemporaneous records is due to the fact
that they “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.” Cucuras, 993 F.2d at 1528.
Accordingly, if the medical records are clear, consistent, and complete, then they
should be afforded substantial weight. Lowrie v. Sec'y of Health & Human Servs., No.
03–1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed,
contemporaneous medical records are generally found to be deserving of greater
evidentiary weight than oral testimony—especially where such testimony conflicts with
the record evidence. Cucuras, 993 F.2d at 1528; see also Murphy v. Sec'y of Health &
Human Servs., 23 Cl. Ct. 726, 733 (1991), aff'd, 968 F.2d 1226 (Fed. Cir.), cert. den'd,
Murphy v. Sullivan, 506 U.S. 974, 113 S.Ct. 463, 121 L.Ed.2d 371 (1992) (citing United
States v. United States Gypsum Co., 333 U.S. 364, 396, 68 S.Ct. 525, 92 L.Ed. 746
(1948) (“[i]t has generally been held that oral testimony which is in conflict with
contemporaneous documents is entitled to little evidentiary weight.”)). However, there
are situations in which compelling oral testimony may be more persuasive than written
records, such as where records are deemed to be incomplete or inaccurate. Campbell
v. Sec'y of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006) (“like any norm based
upon common sense and experience, this rule should not be treated as an absolute and
must yield where the factual predicates for its application are weak or lacking”); Lowrie,
2005 WL 6117475, at *19 (“[w]ritten records which are, themselves, inconsistent, should
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be accorded less deference than those which are internally consistent”) (quoting
Murphy, 23 Cl. Ct. at 733).
When witness testimony is offered to overcome the presumption of accuracy
afforded to contemporaneous medical records, such testimony must be “consistent,
clear, cogent, and compelling.” Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v.
Sec'y of Health & Human Servs., No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec.
Mstr. June 30, 1998)). In determining the accuracy and completeness of medical
records, the Court of Federal Claims has listed 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 Health & Human Servs., 110 Fed. Cl. 184, 203–04
(2013), aff'd, 746 F.3d 1334 (Fed. Cir. 2014). In making a determination regarding
whether to afford greater weight to contemporaneous medical records or other
evidence, such as testimony at hearing, there must be evidence that this decision was
the result of a rational determination. Burns, 3 F.3d at 417.
The specific issue of determining the onset of symptoms in a SIRVA case has
arisen repeatedly. Important to that point given the short 48-hour onset period identified
by the Vaccine Injury Table, the Vaccine Act instructs that the special master may find
the time period for the first symptom or manifestation of onset required for a Table Injury
is satisfied “even though the occurrence of such symptom or manifestation was not
recorded or was incorrectly recorded as having occurred outside such a period.”
§300aa-13(b)(2). However, consistent with petitioner’s burden of proof overall, that
finding must be supported by preponderant evidence. Id.
In prior decisions it has been held that neither a delay in seeking treatment in
itself, nor a failure to report symptoms to a specialist or emergency room provider prior
to later seeking treatment, is necessarily dispositive of whether a petitioner’s shoulder
pain began within 48 hours of vaccination. See Forman-Franco v. Sec’y of Health &
Human Servs., No. 15-1479V, 2018 WL 1835203 (Fed. Cl. Spec. Mstr. Feb. 21, 2018);
Tenneson v. Sec’y of Health & Human Servs., No. 16-1664V, 2018 WL 3083140 (Fed
Cl. Spec. Mstr. Mar. 30, 2018), mot. rev. denied 142 Fed. Cl. 329 (2019); Gurney v.
Sec’y of Health & Human Servs., No. 17-481V, 2019 WL 2298790 (Fed. Cl. Mar. 19,
2019). For example, in Williams v. Secretary of Health & Human Services, I found that
the petitioner had established onset within 48 hours even though he had delayed
treatment for his shoulder injury by months and had not taken the first opportunity to
report his symptoms. No. 17-1046V, 2020 WL 3579763, at *2 (Fed. Cl. Spec. Mstr. Apr.
1, 2020). In that case, however, petitioner’s care providers provided testimony
supporting petitioner’s contention that he had reported his symptoms earlier than the
medical records indicated. Id. at *3-6. Moreover, the intervening medical appointment
was only for a prescription check. Id.
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Delays in seeking shoulder-related treatment have contributed to findings against
prior SIRVA claims. This typically occurs when the contemporaneous medical records
that do exist reflect a course of treatment inconsistent with an immediate post-
vaccination onset or have otherwise been contradictory to petitioner’s allegation of
immediate post-vaccination onset. See e.g., Small v. Sec’y of Health & Human Servs.,
No. 15-478V, 2019 WL 6463985, at *11 (Fed. Cl. Spec. Mstr. Nov. 1, 2019); Demitor v.
Sec’y of Health & Human Servs., No. 17-564V, 2019 WL 5688822, at *10 (Fed. Cl.
Spec. Mstr. Oct. 9, 2019); see also Lavender v. Sec’y of Health & Human Servs., No.
18-1921V, 2021 WL 667187 (Fed. Cl. Spec. Mstr. Jan 25, 2021).
IV. Discussion
In this case, it is apparent from the medical records that Mr. Duesterheft at some
point concluded that his shoulder pain was related to his vaccination. However, he did
not report this to any of his care providers until approximately six months later when he
first indicated to a chiropractor on March 7, 2016 that he felt he had had a vaccine
reaction. (Ex. 2, p. 3.) At that time, despite the suggestion of a vaccine reaction, onset
was not specifically discussed and the shoulder pain was presented in the context of
neck and back pain and felt to be radiculopathy. (Id.) In the interim, Mr. Duesterheft
had presented to three different physicians without complaining of shoulder pain. (Ex.
3, pp. 83, 88, 92.) Two of these appointments purported to include musculoskeletal
examinations that indicated no relevant findings. (Id. at 88, 92.) It was not until July of
2016 that Mr. Duesterheft began indicating to his orthopedist that his shoulder pain
began in September of 2015. (Ex. 5, p. 20.)
Petitioner seems to contend that Mr. Duesterheft’s earliest medical records
should be given less weight, arguing that “Mr. Duesterheft’s medical records are not
perfect due to his providers’ lack of recording of his complaints and lack of
understanding and/or belief that a flu vaccination can cause shoulder pain.” (ECF No.
35, p. 6.) This is unpersuasive insofar as the only fault petitioner raises with the medical
records is the lack of confirmation of the symptom(s) being contested. Moreover,
nothing in these physicians’ medical records confirms Mr. Duesterheft’s assertion that
they were incredulous regarding his description of symptoms3 and only petitioner’s own
much later histories suggest that any symptoms went unrecorded. See, e.g., Vergara v.
Sec’y of Health & Human Servs., 08-882V, 2014 WL 2795491, *4 (Fed. Cl. Spec. Mstr.
May 15, 2014) (“Special Masters frequently accord more weight to contemporaneously-
recorded medical symptoms than those recorded in later medical histories, affidavits, or
trial testimony” (emphasis added).).
Mr. Duesterheft’s affidavit statement that he experienced shoulder pain
“immediately” following his vaccination, which is contrary to what is evidenced in the
contemporary medical records, is supported by recollections gathered in an affidavit (his
second) that was created about three and a half years after the vaccination at issue.
3 Mr. Duesterheft’s orthopedist, Dr. Baker, later acknowledged being previously unaware of SIRVA (Ex. 5,
p. 9.); however, Dr. Baker’s acceptance of the condition is not at issue in determining the significance of
Mr. Duesterheft’s earlier treatment records from other medical providers.
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Case 1:18-vv-00008-UNJ Document 45 Filed 03/23/21 Page 10 of 12
(Exs. 9, 13.) Although he discussed no longer being able to pursue his hobbies, he did
not anchor his recollection to any specific instances. Moreover, his affidavit does
include discrepancies that provide evidence of an unreliable recollection regarding Mr.
Duesterheft’s interactions with his physicians.
Mr. Duesterheft stresses that prior to understanding the how and why of vaccine-
related shoulder injuries, he asked “each and every doctor” if a flu shot could cause the
pain he was experiencing and each doctor told him they were unaware of such a
possibility. (Ex. 13, pp. 1-2.) He specifically indicated that he spoke to his oncologist,
Dr. Castillo, his primary care physician, Dr. Wheeler, and his urologist, Dr. Willis. (Id. at
1.) However, Mr. Duesterheft’s records reflect that he did not see either Dr. Wheeler or
Dr. Willis during this period. (Ex. 6.) Mr. Duesterheft saw Dr. Willis on March 10, 2014,
and did not return again until September 29, 2016, over a year after the vaccination at
issue. (Ex. 6, pp. 3-4.) He received the subject vaccination at an appointment with Dr.
Wheeler, but did not return for any primary care until July 15, 2016. (Ex. 3, pp. 11-13.)
At that time, however, he was seen by a physician’s assistant, Barbara Bolek. (Id.) Mr.
Duesterheft did not see Dr. Wheeler again until September 12, 2016. (Id. at 8-10.) By
the time of these appointments with Drs. Wheeler and Willis, Mr. Duesterheft was
already under orthopedic care and pursuing physical therapy. It was also around this
time he is recorded as having relayed to his orthopedist that he felt his injury was
vaccine-caused.4 (Ex. 5, pp. 14, 26-28.)
Even setting aside these inconsistencies, the course of Mr. Duesterheft’s medical
history itself provides further reason to credit the medical records over his subsequent
and contradictory testimonial evidence. Mr. Duesterheft’s history during this period
included multiple musculoskeletal examinations, including physical exam of the upper
extremities by a neurologist on December 9, 2015, prompted by his care for hand
tremors. (Ex. 3, p. 88.) Dr. Vu specifically recorded having checked Mr. Duesterheft’s
biceps, triceps, and deltoids, as part of an upper extremity examination and recorded no
significant findings. (Id.) While the physical exam purportedly conducted by his
oncologist may have been less likely to include anything more than a cursory evaluation
of his extremities (Ex. 3, p. 92), Dr. Vu’s more detailed notes, as well as the fact that Mr.
Duesterheft was being seen for an upper extremity condition, albeit unrelated, make it
far less likely that pain or a reduced range of motion would have gone unrecorded (Ex.
3, p. 88). Moreover, Dr. Vu was not among the physicians that petitioner identified as
being unaware of or skeptical regarding post-vaccination shoulder pain. (Ex. 13, p. 1.)
Additionally, the fact that Mr. Duesterheft saw several different medical providers during
4 Petitioner indicated at his September 19, 2016 orthopedic visit that he felt his condition resulted from his
vaccination. (Ex. 5, p. 14-15.) However, he also suggested in his second affidavit that at some point he
began researching SIRVA after finding a Vaccine Information Sheet at the San Antonio hospital. (Ex. 13,
p. 2; Ex. 10.) He does not provide any detail in his affidavit regarding the circumstances that led him to
discover and review the vaccine information sheet (Ex. 10). Nor does he indicate when this occurred.
(Ex. 13.) However, he did suggest that this culminated in his specific recollection of being seen by Dr.
Baker on November 21, 2016 and being diagnosed with adhesive capsulitis on that date. (Ex. 13, p. 2.)
However, Dr. Baker’s records appear to reflect that this conversation occurred at the following
appointment on December 6, 2016. (Ex. 5, pp. 8-10.)
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Case 1:18-vv-00008-UNJ Document 45 Filed 03/23/21 Page 11 of 12
the six months following his vaccination reduces the likelihood that the absence of any
complaint of shoulder pain was due to error or omission on the part of the physicians.
In any event, Mr. Duesterheft’s intimation that his records were silent regarding
his shoulder condition because his physicians were dismissive of his concern is also
unpersuasive. Dr. Castillo, one of the three physicians that purportedly failed to
appreciate and record his arm pain was, in fact, the first of Mr. Duesterheft’s physicians
to record that he was suffering arm pain and responded by recommending an
orthopedic follow up. (Ex. 3, pp. 73, 75.) This contradicts any suggestion or inference
by Mr. Duesterheft that Dr. Castillo was dismissive of his complaint generally.5
Moreover, following the vaccination at issue, Mr. Duesterheft did not seek any care from
his primary care provider at all until July 16, 2016. (Ex. 3, pp. 11-13.) This appointment
was specifically for a cough and fever and by this point Dr. Castillo had already
recommended orthopedic follow up. In fact, this primary care appointment was less
than one week prior to Mr. Duesterheft’s first orthopedic appointment.6
I have also considered the additional witness affidavits filed by petitioner.
However, even if crediting these affidavits as some evidence that onset of Mr.
Duesterheft’s shoulder pain was earlier than reflected in the medical records, they lack
sufficient detail to be persuasive in establishing onset within 48 hours of vaccination.
Mr. Childress indicated that “[w]e never discussed dates,” but indicated that he
discussed Mr. Duesterheft’s shoulder pain in connection with his seeking chiropractic
care, which began in March of 2016. (Ex. 11.) As noted above, the later medical
records show that Mr. Duesterheft did come to associate his shoulder pain with his
vaccination. Accordingly, the fact that he at some unspecified time relayed the same
belief to members of his community is not in itself illuminating. Ms. Germer did indicate
a direct observation that she noticed Mr. Duesterheft acting injured “in the Fall of 2015.”
(Ex 12.) Again though, this does not indicate onset within 48 hours of vaccination. In
that regard Mrs. Duesterheft, despite recalling that onset occurred on the date of
vaccination, averred that she created a contemporaneous calendar entry that places
“reaction to flu shot” on September 27, 2015. (Ex. 16, p. 2; Ex. 15, p. 1.) This is
consistent with the medical records insofar as when Mr. Duesterheft eventually began
associating his shoulder pain to his vaccination in discussion with both his orthopedist
and physical therapist, he was no more specific than to indicate that the shoulder pain
began in September of 2015. (Ex. 5, pp. 20, 30.)
5 Respondent notes that this should also allow greater weight to be placed on Dr. Castillo’s earlier record
of October 26, 2015, wherein Dr. Castillo did not note any shoulder problems just over one month after
the vaccination at issue. (ECF No. 37, p. 2.)
6 In contrast to Mr. Duesterheft’s suggestion that he repeatedly raised his shoulder pain to his doctors,
Mrs. Duesterheft recalled him as “presenting for treatment” beginning in March of 2016. (Ex. 16, p. 2.)
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Case 1:18-vv-00008-UNJ Document 45 Filed 03/23/21 Page 12 of 12
V. Conclusion
In light of the above, there is not preponderant evidence that Mr. Duesterheft
experienced right shoulder pain within 48 hours of his September 23, 2015 flu
vaccination.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
12

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_18-vv-00008-1
Date issued/filed: 2021-04-23
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 3/29/2021) regarding 48 DECISION of Special Master. Signed by Special Master Daniel T. Horner. (et) Service on parties made.
--------------------------------------------------------------------------------
Case 1:18-vv-00008-UNJ Document 49 Filed 04/23/21 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-08V
Filed: March 29, 2021
UNPUBLISHED
Special Master Horner
BETTY DUESTERHEFT, as Personal
Representative of the ESTATE OF
RONNIE DUESTERHEFT, deceased,
Petitioner’s Motion for Decision
Dismissing Petition; Shoulder
Petitioner,
Injury Related to Vaccine
v.
Administration; SIRVA;
Influenza (flu) Vaccine; Onset
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On January 2, 2018, Ronnie Duesterheft filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012),2 alleging that as a result
of an influenza (“flu”) vaccination that he received on September 23, 2015, he suffered a
right shoulder injury. (ECF No. 1.) On November 8, 2020, Betty Duesterheft was
substituted as petitioner in her capacity as personal representative of Mr. Duesterheft’s
estate. (ECF No. 28.)
On July 20, 2020, petitioner moved for a finding of fact regarding the onset of the
alleged injury, requesting a finding that onset of Mr. Duesterheft’s shoulder pain
occurred within 48 hours of the vaccination at issue. (ECF No. 35.) This case was
1 Because this decision 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 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 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.
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Case 1:18-vv-00008-UNJ Document 49 Filed 04/23/21 Page 2 of 3
reassigned to my docket on January 28, 2021. (ECF No. 40.) I issued a Finding of Fact
on February 24, 2021, finding that there is not preponderant evidence that Mr.
Duesterheft’s shoulder pain began within 48 hours of his September 23, 2015 flu
vaccination. (ECF No. 43.)
On March 26, 2021, petitioner filed a Motion for a Decision Dismissing her
Petition. (ECF No. 47.) Petitioner indicated that in light of my Finding of Fact that Mr.
Duesterheft’s injuries “were incompatible with a Table Injury of SIRVA,” and therefore,
“[u]nder these circumstances, to proceed further would be unreasonable, and would
waste the resources of this Court, Respondent, and the Vaccine Program.” (Id. at 2.)
Petitioner further stated that “[p]etitioner understands that a decision by the Special
Master dismissing her petition will result in a judgment against her and that such a
judgment will end all of her rights in the Vaccine Program. Petitioner understands that
she may apply for costs once her case is dismissed and judgment is entered against
her.” (Id.)
To receive compensation in the Vaccine Program, petitioner must prove either
(1) that Mr. Duesterheft suffered a “Table Injury” – i.e., an injury falling within the
Vaccine Injury Table – corresponding to a covered vaccine, or (2) that he suffered an
injury that was actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1).
To satisfy his burden of proving causation in fact, 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 a proximate temporal relationship between vaccination
and injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005). The Vaccine Act, 42 U.S.C. § 300aa-13(a)(1), prohibits the undersigned from
ruling for petitioner based solely on her allegations unsubstantiated by medical records
or medical opinion.
As discussed in my Finding of Fact, Mr. Duesterheft’s medical records do not
support petitioner’s allegations of a Table injury by a preponderance of the evidence
and she did not otherwise establish a causation in fact claim. (ECF No. 43.)
Accordingly, the undersigned GRANTS petitioner’s Motion for Decision Dismissing
Petition and DISMISSES this petition for failure to establish a prima facie case of
entitlement to compensation.
CONCLUSION
This case is now DISMISSED. The clerk of the court is directed to enter
judgment in accordance with this decision.3
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
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Case 1:18-vv-00008-UNJ Document 49 Filed 04/23/21 Page 3 of 3
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
3