VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00141
Package ID: USCOURTS-cofc-1_20-vv-00141
Petitioner: Neil Silver
Filed: 2020-02-10
Decided: 2023-04-27
Vaccine: influenza
Vaccination date: 2019-01-08
Condition: Guillain-Barré syndrome (GBS)
Outcome: entitlement_granted_pending_damages
Award amount USD: 

AI-assisted case summary:
Neil Silver, a 62-year-old adult, filed a petition for compensation under the National Vaccine Injury Compensation Program on February 10, 2020. He alleged that approximately three to four weeks after receiving an influenza vaccine on January 8, 2019, he began experiencing numbness, tingling, and pain in his legs, which he believed to be the initial manifestation of Guillain-Barré syndrome (GBS). The Secretary of Health and Human Services disagreed, arguing that Mr. Silver's GBS symptoms did not manifest until early June 2019, approximately five months after vaccination, which would be outside the Vaccine Injury Table's time frame. A fact-finding hearing was held on November 16, 2021, to determine the precise onset date of Mr. Silver's symptoms. The public decision does not describe Mr. Silver's prior medical history beyond a 2013 diagnosis of Parsonage Turner Syndrome (PTS), which affected his upper extremities. Mr. Silver testified that his PTS did not involve his lower extremities. He also stated that prior to January 2019, he was generally healthy and active, participating in weekly basketball games, walking with his wife, and taking adventurous vacations. His wife, Robyn Cohen, and friend, Richard Baumer, corroborated his active lifestyle. Mr. Silver received the influenza vaccine on January 8, 2019, during a cardiology follow-up. He stated this was his first flu vaccine. Mr. Silver, Ms. Cohen, and Mr. Baumer asserted that Mr. Silver began exhibiting health problems soon after the vaccination. Mr. Silver's affidavit claimed he began experiencing left lower extremity pain shooting down his leg and weakness in his left leg periodically in late January/early February 2019, describing these issues as pain and weakness in his legs, hot shooting pains down the outside of his legs, tingling sensations in his feet and legs, and heavy legs with chronic muscle pain. Ms. Cohen testified that she noticed a "huge decline" in Mr. Silver's energy and that he complained of pain and discomfort in his back, legs, and feet around the end of January 2019, and began struggling to walk up stairs. Mr. Baumer testified that Mr. Silver's energy declined to the point where he started sitting out of basketball games and eventually stopped playing completely, reporting that Mr. Silver told him his legs were hurting and felt like they had sharp, fire-like shooting pains. The public decision notes a lack of contemporaneous medical records documenting leg symptoms in January or February 2019. Medical records from April 25, 2019, and June 4, 2019, did not mention leg pain, numbness, or tingling. Mr. Silver explained he did not mention his leg symptoms to his physician on June 4, 2019, because they were "a few months back" and he was focused on arm and shoulder pain. Contemporaneous gym records showed Mr. Silver visited the gym seven times in January 2019, with the last visit on January 29, and did not return in February 2019. Mr. Silver traveled to Zurich, Switzerland, on June 4, 2019, and was admitted to Zurich University Hospital on June 6, 2019, with flaccid tetraparesis and areflexia. An EMG/NCS test on June 7 showed demyelinating disease consistent with Guillain Barré Syndrome. He was diagnosed with GBS, Miller-Fisher subtype, and later developed respiratory failure requiring ventilation and a tracheotomy. He was medevacked back to the United States on June 18, 2019. Medical records from New York Presbyterian, taken on June 18, 2019, stated his symptoms started prior to travel on June 3 with new weakness and pain in the shoulder and arms, progressing to weakness in the legs on June 5, 2019, with this information reportedly provided by his wife. On October 19, 2019, Mr. Silver told his pulmonary doctor, Claudia M. Felberg, that he began having "shooting pains" "a few weeks after[] [his] Flu shot." The Special Master, Christian J. Moran, found Mr. Silver's testimony, corroborated by his wife and friend, along with the gym records showing a decline in activity, to be credible. The Special Master determined that Mr. Silver experienced the onset of leg pain, numbness, and tingling during the last week of January 2019. This ruling establishes the onset date for the purpose of further proceedings, such as expert testimony on causation and potential damages, but does not constitute a diagnosis of GBS itself. The case is ongoing, with entitlement granted pending further decisions on damages. Petitioner's counsel was Ira M. Newman, and respondent's counsel was Nina Ren. The decision was issued on April 27, 2023.

Theory of causation field:
Petitioner Neil Silver, age 62, received an influenza vaccine on January 8, 2019. He alleged onset of leg pain, numbness, and tingling in late January 2019, approximately three to four weeks post-vaccination, which he believed to be Guillain-Barré syndrome (GBS). Respondent argued onset was in early June 2019, outside the Vaccine Injury Table's 3-42 day window. Special Master Christian J. Moran held a fact-finding hearing and, despite a lack of contemporaneous medical records documenting the alleged January 2019 symptoms, found Mr. Silver's testimony, corroborated by his wife and friend, and supported by gym records showing a decline in activity, to be credible. The Special Master determined the onset date of leg pain, numbness, and tingling to be the last week of January 2019. This finding establishes the onset for further proceedings on causation and damages. The public decision does not detail the specific mechanism of causation or name any experts. Petitioner's counsel was Ira M. Newman, and respondent's counsel was Nina Ren. The decision date was April 27, 2023.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00141-0
Date issued/filed: 2023-04-27
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 12/16/22) regarding 60 DECISION of Special Master, Signed by Special Master Christian J. Moran. (ceo) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-00141-UNJ Document 68 Filed 04/27/23 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * * * *
NEIL SILVER, *
*
Petitioner, * Case No. 20-141
*
v. * Ruling on onset; Influenza (“Flu”) Vaccine;
* Guillain-Barré syndrome (“GBS”); leg pain;
SECRETARY OF HEALTH * numbness; tingling
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * *
Ira M. Newman, Sanocki, Newman & Turret, LLP, New York, NY, for petitioner,
Nina Ren, United States, Dep’t of Justice, Washington, DC, for respondent.
FINDING OF FACT1
Neil Silver filed a petition for compensation under the National Vaccine Injury
Compensation Program on February 10, 2020. Pet. Mr. Silver alleges that roughly three or four
weeks after he received the flu vaccine on January 8, 2019, he began experiencing numbness,
tingling, and pain in his legs. Pet. ¶ 4. In Mr. Silver’s view, these symptoms signify the initial
manifestation of Guillain-Barré syndrome (“GBS”). Respondent disagrees, arguing that
“petitioner did not present with the onset of GBS until early June of 2019, approximately five
months after vaccination.” Resp’t’s Rep., at 6. A fact-finding hearing was held on November 16,
2021 to determine when Mr. Silver began having these problems. For the reasons discussed
below, Mr. Silver is found to have experienced onset of leg pain, numbness, and tingling during
the last week of January 2019.
I. Procedural History
Mr. Silver filed a petition for compensation under the National Vaccine Injury
Compensation Program—along with an affidavit and medical records—on February 10, 2020.
Pet’r’s Pet.; Exhibits 1-2. Mr. Silver alleges that roughly three or four weeks after he received
1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this ruling on its website. Anyone will be able to access this
ruling via the internet (https://www.uscfc.uscourts.gov/aggregator/sources/7). Pursuant to
Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical
information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions
ordered by the special master will appear in the document posted on the website.

Case 1:20-vv-00141-UNJ Document 68 Filed 04/27/23 Page 2 of 10
the flu vaccine, he began to have numbness, tingling, and pain in his legs. Pet. ¶ 4. Over the
next eight months after filing his petition, Mr. Silver submitted additional medical records and
evidence to support his claim. See generally Exhibits 1-16.2
On January 31, 2021, the Secretary filed his Rule 4(c) Report. Resp’t’s Rep. The
Secretary argued “petitioner’s description of ‘slowly progress[ing]’ symptoms [were] unreported
to his physicians beginning in mid- to late January of 2019” and suggested that this “[wa]s not
consistent with the acute onset of GBS in June.” Id. at 8. The Secretary went on to state that
“medical records show that [Mr. Silver] did not present with onset of GBS until early June 2019,
approximately five moments after vaccination,” meaning that “onset of . . . GBS was well
outside the Table Frame of 3-42 days following vaccination.” Id. at 6
A status conference was then held on February 19, 2021 to discuss Mr. Silver’s updated
medical records and the Secretary’s report. See Order, issued Feb. 19, 2021. There, petitioner
was told to file an affidavit regarding the onset of his symptoms. Id.; see also Order, issued June
9, 2022; Order, issued July 28, 2021.
A virtual hearing was held via Microsoft Teams on Tuesday, November 16, 2021. See
id. Testimony was provided by Mr. Silver, Ms. Robyn Cohen (Mr. Silver’s wife), and Mr.
Silver’s friend, Mr. Richard Baumer. Their testimony and the materials contained in the record
are the basis for the findings of fact made below.
Although the parties attempted to enter into a settlement agreement, efforts to settle the
cases were unsuccessful. As a result, the parties requested a ruling. This matter is now ripe for a
finding of fact regarding the issue of onset.
II. Factual Assertions
Mr. Silver was generally healthy prior to receiving his flu vaccine. In 2013, Mr. Silver
was diagnosed with Parsonage Turner Syndrome (“PTS”). Id. PTS is a “neuralgic amyotrophy,”
which typically presents as “pain across the shoulder and upper arm, with atrophy and paralysis
of the muscles of the shoulder girdle.” Dorland’s Illust. Med. Dictionary, at 70, 1319 (32nd ed.
2012). Mr. Silver claims that when he was diagnosed with PTS, he “did not experience any
lower extremities complaints or back pain . . . and never had leg weakness or shoot[ing] pains in
[his] legs and never ha[d] difficulty walking . . . fatigue and generalized weakness.” Exhibit 15
(Silver Aff.) ¶ 7. He did, however, experience a right winged scapula, transient arm pain,
sensitivity to cold, numbness and weakness with a tingling sensation in his hands as a result of
PTS. Id.
Affidavits from Mr. Silver, Ms. Robyn Cohen, and Mr. Richard Baumer, also provide a
picture of a man who was in “good health” and “active on a regular basis” prior to January 2019.
Exhibit 15 (Silver Aff.) ¶ 6; see also Exhibit 13 (Cohen Aff.); Exhibit 16 (Baumer Aff.). Mr.
Silver played in weekly pick-up basketball games with his friends (including Mr. Baumer),
2 See also Pet’r’s Notice of Filing, filed Dec. 9, 2020 (showing Mr. Silver refiled Exhibits
1-16).
2

Case 1:20-vv-00141-UNJ Document 68 Filed 04/27/23 Page 3 of 10
enjoyed taking walks with his wife and their dogs, and went on active and adventurous
vacations. See Exhibit 15 (Silver Aff.) ¶ 6; Exhibit 13 (Cohen Aff.) ¶ 5; see also Tr. at 23. Mr.
Baumer described Mr. Silver’s “health and physical condition” prior to January 2019 as being
“first rate” and that Mr. Silver was “always . . . one of the most fit and competitive athletes in
[thei]r age group.” Exhibit 16 (Baumer Aff.) ¶ 7.
On January 8, 2019, at the age of 62, Mr. Silver visited his cardiologist, Dr. Alan Hecht,
for a cardiovascular/medical follow-up. Exhibit 10 at 96. In addition to routine evaluations, Mr.
Silver also received the flu vaccine at this January 8, 2019 appointment because he recently
“became a grandfather, and [his] son asked [him] to go get the flu vaccine” before visiting. Tr.
at 22. Prior to receiving the flu vaccine on that date, Mr. Silver had never previously received a
flu vaccine. Tr. at 21.
Mr. Silver, Ms. Cohen, and Mr. Baumer assert that Mr. Silver began exhibiting health
problems soon after receiving the flu vaccine. Mr. Silver’s onset affidavit claims he “began
experiencing left lower extremity pain shooting down [his] leg and weakness in [his] left leg
periodically in or about late January/early February, 2019.” Exhibit 18 (Silver Onset Aff.) at 2-
3 (emphasis added). Mr. Silver described these issues as causing “pain and weakness in [his]
legs,” “hot shooting pains down the outside of [his] legs sometimes shooting up [his] calf into
[his] hamstring,” “tingling sensation in [his] feet and legs,” and “legs fe[eling] heavy . . . [with]
chronic muscle pain.” Exhibit 15 (Silver Aff.) ¶ 10.
Ms. Cohen testified that she “noticed a huge decline” in Mr. Silver’s energy, Tr. at 120,
and that Mr. Silver complained to her around the end of January 2019 about having “pain and
discomfort in his back, legs, and feet, and later in his upper arms and hands.” Exhibit 13 (Cohen
Aff.) ¶ 8. She also stated that Mr. Silver began to struggle “walking up the stairs” and “rel[ied]
on the banister to assist/pull him up the stairs.” Id.3
Mr. Baumer testified that Mr. Silver’s energy declined to the point where Mr. Silver
began sitting out of their weekly pick-up basketball games and progressed to where “[he] just
stopped playing completely.” Tr. at 171. Mr. Baumer further stated that Mr. Silver told him that
“he was having trouble running, because his legs were hurting and felt like there were sharp, fire-
like shooting pains in his legs.” Exhibit 16 (Baumer Aff.) ¶ 8. Mr. Baumer stated these
comments “were at the same time that [Mr. Silver’s] . . . physical ability to play the game at the
level that he played before was becoming much more limited.” Id.
3 Ms. Cohen compared Mr. Silver’s prior experience with PTS to what he experienced in
January and February of 2019. She noted that his “[PTS] only affected his upper body and from
his elbows to his shoulders . . . and a little bit in the upper back, but it had no effect on his legs,
on his energy level or like the weakness, the pain, the shooting pain that he would get in his
legs.” Tr. at 123. During the fact-finding hearing, the Secretary did not question Ms. Cohen
about her opinion as to when Mr. Silver began to have pain, numbness, or tingling in his legs.
See id. at 148-52 (showing the Secretary asked questions on what medications Mr. Silver took,
and whether Mr. Silver experienced flu-like symptoms during the late January, early February
timeframe).
3

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Only one medical record between January 2019 (after his vaccination) until June 5, 2022
was submitted in the record. On April 25, 2019, Mr. Silver visited a dermatology center, where
he reported having “multiple lesions on [the] face” for which he later received cryosurgery.
Exhibit 7 at 9-10. However, these medical records do not contain notes stating Mr. Silver told
his dermatologists about any pain, numbness, or tingling in his legs.
Although there are no contemporaneous medical records during January 2019/February
2019, Mr. Silver did file a copy of contemporaneous gym records showing that he visited the
gym seven times in January 2019, the last visit occurring on January 29. Exhibit 19. However,
Mr. Silver did not go back to the gym at all in February 2019, and only revisited the gym six
more times over the next four months.4 Id.
Ms. Cohen testified that around March or April of 2019, she and Mr. Silver planned
roughly a week-long trip to Zurich, Switzerland. Tr. at 90. They would depart in the evening on
June 4, 2019 from New York City. Prior to their flight, Mr. Silver visited his internist physician,
Dr. John Scrocca, on the morning of June 4, 2019 for treatment regarding brachial plexus
neuropathy, myalgias, neck pain, and pain down both his arms and hands. Exhibit 7 at 12-13.
Dr. Scrocca conducted a neurological exam and recorded that Mr. Silver had “1+ weakness in
both upper extremities.” Id. at 13. There is no record of Mr. Silver mentioning any of his
alleged leg pain, numbness, or tingling at this visit. Id. at 12-14. During the fact-finding
hearing, Mr. Silver was questioned as to why he did not mention his right and left leg
pain/fatigue to Dr. Scrocca. Tr. at 98. Mr. Silver stated he “didn’t think anything of it” because
“it was a few months back” and because he “was totally focused . . . on [his] arms and [his]
shoulders.” Id. At the end of visit, Dr. Scrocca cleared Mr. Silver to fly and stated that he would
need to “be treated with a methylprednisolone Dosepak and Valium 2 mg at bedtime upon his
return.” Exhibit 7 at 13.
Mr. Silver and his wife then flew to Zurich on the evening of June 4, 2019. While in
Zurich, Mr. Silver’s health began to deteriorate. Ms. Cohen testified Mr. Silver had to take
multiple rest breaks during their walk around the city, that he became nauseous, and started to
have difficulty standing and sitting. Mr. Silver then called his neurologist, Dr. Amy Hua, on the
morning of June 6, 2019. Tr. at 139. Because Mr. Silver had developed “difficulty with
swallowing, and distal upper and lower extremity weakness,” Dr. Hua advised Mr. Silver to
“seek medical attention in the nearest emergency room.”5 Exhibit 12 at 14. Ms. Cohen then
called emergency services in Zurich which then transported her and Mr. Silver to Zurich
University Hospital. Tr. at 139-40.
4 The Secretary did not appear to refute this attendance record nor question the content of
it during the fact-finding hearing. See generally Tr.
5 Mr. Silver’s Onset Affidavit acknowledges that he did not tell his neurologist, Dr. Amy
Hua, about experiencing left leg and right leg shooting pains, numbness, and/or tingling while
walking in late January/early February during their June 6, 2019 phone call. Exhibit 18 (Silver
Onset Aff.) at 3. Mr. Silver explains his decision to exclude this information by stating that he
contacted Dr. Hua on June 6, 2019 only to “tell her of [his] developing condition” because he
“was on the verge of paralysis . . . [and] was concerned with [his] immediate circumstances.” Id.
4

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Mr. Silver was admitted to Zurich University Hospital on June 6, 2019 and remained
there until June 18, 2019. Once admitted, Mr. Silver was “noted to have flaccid tetraparesis,
areflexia.” Exhibit 4.1 at 10. An EMG/NCS test was conducted on June 7, which showed
“markedly prolonged latencies with predominantly demyelinating disease, [consistent with]
Guillain Barré Syndrome, and some axonal loss.” Id. He was later diagnosed with Guillain
Barré Syndrome, Miller-Fisher subtype. Exhibit 3.1 at 1. On June 10, Mr. Silver suffered from
“tachycardia/afib for which [an] amiodarone drip . . . [and] a therapeutic heparin drip” were
given. Exhibit 4.1 at 10. Mr. Silver then developed microhematuria and was treated with
Augmentin for pneumonia. Mr. Silver went into “respiratory failure with the need for artificial
ventilation on June 11th.” Id.; Exhibit 3.1 at 2. On June 15, he received a tracheotomy and was
put on a ventilator. Exhibit 4.1 at 10. Mr. Silver was discharged from Zurich University
Hospital and medevacked back to Columbia Presbyterian Hospital in the United States on June
18, 2022. Tr. at 144; Exhibits 4.1-4.4. Mr. Silver then underwent a lengthy recovery.6
Medical records from New York Presbyterian state that Mr. Silver’s “symptoms started
prior to travel on 6/3 with new weakness and pain in the shoulder and arms, which progressed to
weakness in the legs on 6/5/19.” Exhibit 4.1 at 10, 18. However, these records were taken on
June 18, 2022, a time when Mr. Silver was still intubated and connected to a ventilator. Id. at 11.
Thus, this information appears to have been provided to Mr. Silver’s treaters by his wife, Ms.
Cohen. Id. at 10, 18 (noting that “per his wife, he had no significant improvement” with the
medication Mr. Silver was given at Zurich University Hospital).
After undergoing physical, occupational, and speech-language therapy, Mr. Silver went
to see Dr. Hua on October 8, 2019, where he complained that he had “falling/walking difficulty,
poor balance, and numbness/tingling.” Exhibit 12 at 16. Although the record stated “he had
received a flu shot in February 2019” the records only show that “he had no acute symptoms of
[upper respiratory infections] or illness in June 2019”—thus nothing in these records discuss
whether he was experiencing the pain, numbness, and tingling in his legs on, or around, the time
of January 2019 / February 2019. Id. at 14 (emphasis added). It was only until October 19,
2019, several months after Mr. Silver was hospitalized, that Mr. Silver’s medical records show
Mr. Silver told his pulmonary doctor, Claudia M. Felberg, that he began having “shooting pains”
that occurred “a few weeks after[] [his] Flu shot.” Exhibit 7 at 15.
III. Legal Standards Regarding Fact Finding
Petitioner bears the burden of establishing his claims by preponderant evidence. 42
U.S.C. § 300aa–13(1)(a). A petitioner must offer evidence that leads the “trier of fact to believe
that the existence of a fact is more probable than its nonexistence before [he or she] may find in
favor of the party who has the burden to persuade the judge of the fact’s existence.” Moberly v.
Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations omitted).
The process of finding facts in cases within the Vaccine Program begins with analyzing
medical records, which are required to be filed with the petition. 42 U.S.C. § 300aa-11(c)(2).
6 A discussion regarding Mr. Silver’s recovery is not relevant for the determination of
symptom onset.
5

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Medical records created contemporaneously with the events they describe are presumed to be
accurate and “complete” such that they present all relevant information on a patient’s health
problems. Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
This is because a patient’s motivation for providing an accurate recount of symptoms is more
immediate, as opposed to testimony offered after the events in question, which is considered
inherently less reliable. Reusser v. Sec’y of Health & Hum. Servs., 28 Fed. Cl. 516, 523 (1993);
see Murphy v. Sec’y of Health & Hum. Servs., 23 Cl. Ct. 726, 733 (1991), aff’d 968 F.2d 1226
(Fed. Cir. 1992) (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 396 (1948)).
Despite the weight afforded to contemporaneous medical records, special masters are not
rigidly bound by those records in determining onset of a petitioner’s symptoms. Vallenzuela v.
Sec’y of Health & Hum. Servs., 1991 WL 182241, at *3 (Fed. Cl. Spec. Mstr. Aug. 30, 1991);
see also Eng v. Sec’y of Health & Hum. Servs., 1994 WL 67704, at *3 (Fed. Cl. Spec. Mstr. Feb.
18, 1994) (explaining that 42 U.S.C § 300aa- 13(b)(2) “must be construed so as to give effect to
§ 13(b)(1) which directs the special master or court to consider the medical record . . . but does
not require the special master or court to be bound by them”). Although contemporaneously
written medical records are usually more significant than oral testimony, “this rule should not be
treated as an absolute and must yield where the factual predicates for its application are weak or
lacking.” Campbell v. Sec’y of Health & Hum. Servs., 69 Fed. Cl. 775, at 779.
For example, the court noted “medical records typically record only a fraction of all that
occurs, the fact that reference to an event is omitted from the medical records may not be very
significant.” Murphy, 23 Cl. Ct. at 727 (internal citation omitted). Furthermore, an “absence of a
reference to a condition or circumstance is much less significant than a reference which negates
the existence of the condition or circumstance.” Id. at 733. Kirby appears to expand this
reasoning, noting that “[a]lthough a patient has a ‘strong motivation to be truthful’ when
speaking to his physician, . . . that does not mean he will report every ailment he is experiencing,
or that the physician will accurately record everything he observes.” Kirby v. Sec’y Health &
Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021); see also id. (“A patient having a heart attack
is not likely to mention his runny nose, nor is his physician likely to record it.”). In Kirby, the
Federal Circuit found there was “no evidence” from the medical records in that case suggesting
that the petitioner and physician “discussed all possible neurological symptoms or conditions”
that petitioner experienced. Id.
Accordingly, there times where compelling oral testimony may be more persuasive than
written records. See Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993)
(noting that whether contemporaneous medical records or later-given oral testimony is more
persuasive is a determination that “is uniquely within the purview of the special master”).
The Court of Federal Claims has listed four possible explanations for inconsistencies
between medical records and later testimony: (1) a person’s failure to recount to the medical
professional everything that happened during the relevant time period; (2) the medical
professional’s failure to document everything reported to her or him; (3) a person’s faulty
recollection of the events when presenting testimony; or (4) a person’s purposeful recounting of
symptoms that did not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-
04 (2013), aff’d, 746 F.3d 1334 (Fed. Cir. 2014). Ultimately, a determination regarding a
6

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witness’s credibility is needed when determining the weight that such testimony should be
afforded. Andreu ex rel Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed.
Cir. 2009).
The relative strength or weakness of the testimony of a fact witness affects whether this
testimony is more probative than medical records. An assessment of a fact witness’s credibility
may involve consideration of the person’s demeanor while testifying. Id. at 1379; Bradley v.
Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). Accordingly, a
competent petitioner’s testimony regarding symptom onset may be deemed to be credible
evidence. See James-Cornelius v. Sec’y of Health & Hum. Servs., 984 F.3d 1374, 1380 (Fed.
Cir. 2021).
IV. Analysis
This ruling concerns when Mr. Silver began experiencing pain, numbness, and tingling in
his legs. This question regarding when Mr. Silver’s symptoms began is difficult due to the lack
of contemporaneous medical records during the late January 2019, early February timeframe.
On April 25, 2019 and June 4, 2019, Mr. Silver visited two different physicians, but at
neither appointment discussed that he had, or was experiencing, leg pain, numbness, or tingling
since late January 2019. As previously stated, a “patient’s motivation for providing an accurate
recount of symptoms is more immediate, as opposed to testimony offered after the events in
question, which is considered inherently less reliable.” Reusser, 28 Fed. Cl. at 523. Respondent
argues that this lack of notation on the medical records illustrates that the symptoms had yet to
occur on or before that time. See Resp’t’s Rep., at 6, 8.
Kirby, however, states that “[a]lthough a patient has a ‘strong motivation to be truthful’
when speaking to his physician, . . . that does not mean he will report every ailment he is
experiencing, or that the physician will accurately record everything he observes.” 997 F.3d at
1383. Mr. Silver testified that the reason he did not mention his leg pain, numbness, or tingling
during his June 4, 2019 visit to Dr. Scrocca, was because “it was a few months back” and at the
time, he was “totally focused on [his] arms and [his] shoulders.”7 Tr. at 98. Moreover, the fact
that Mr. Silver did not discuss the numbness and tingling in his legs does not, by itself, prove
that he did not experience these symptoms during the last week of January 2019. See Murphy,
23 Cl. Ct. at 733 (“[T]he absence of a reference to a condition or circumstance is much less
significant than a reference which negates the existence of the condition or circumstance.”).
Thus, like Kirby, it is plausible to believe that Mr. Silver did not “discuss[] all possible
neurological symptoms or conditions” he experienced during his visit with Dr. Scrocca. 997
F.3d at 1383 (emphasis added).
Accordingly, given the lack of contemporaneous medical records and the absence of
medical records directly negating Mr. Silver’s assertion regarding his symptom onset, other
materials in the record must be considered.
7

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When affidavits, testimony, and non-medical records are used to overcome the
presumption of accuracy afforded to contemporaneous medical records, such evidence must be
“consistent, clear, cogent, and compelling.” Popwell v. Sec’y of Health & Hum. Servs., No. 17-
1301V, 2021 WL 850801, at *4 (Fed. Cl. Jan. 27, 2021). The materials submitted in this case
meet this standard.
Mr. Silver submitted contemporaneous gym records showing that prior to late January, he
visited his gym on a regular basis. Exhibit 19. Then, after January 29, 2019, Mr. Silver stopped
regularly going to the gym and only visited it six more times over the next four months. Id.
During the fact-finding hearing, Respondent did not question Mr. Silver on these records.
Affidavits and testimony from Mr. Silver, Ms. Cohen, and Mr. Baumer also provide
support for Mr. Silver’s assertion that his symptoms began roughly the last week of January.
Mr. Silver’s affidavit and testimony stated he began experiencing pain, numbness, and
tingling in late January 2019, early February 2019. Exhibit 15 (Silver Aff.) ¶ 3; see also Tr. at
29. Ms. Cohen’s affidavit noted that Mr. Silver complained of “pain and discomfort in his back,
legs, and feet, and later in his upper arms and hands” in the middle to late January 2019. Exhibit
13 (Cohen Aff.) ¶ 8. She further testified at the hearing that she “noticed a huge decline in his
energy levels, . . . that he as getting aches and pains, which were unusual” around January 2019.
Tr. at 120. One such example was Ms. Cohen’s statement that it became “increasingly difficult”
for Mr. Silver to “walk up the stairs” and that he had to “rely on the banister to assist/pull him up
the stairs.” Id. Although the Secretary could have questioned Ms. Cohen on the timing of these
symptoms during the hearing, he did not, and instead asked questions about Mr. Silver’s
medications and whether he had any other symptoms during that time. See id. at 148-52.
Mr. Baumer also testified that Mr. Silver appeared to exhibit leg problems around the end
of January 2019. Prior to that time, Mr. Baumer testified that Mr. Silver had “great stamina” and
was “one of the most fit and competitive athletes in [thei]r age group,” calling Mr. Silver’s health
and physical condition “first rate.” Exhibit 16 (Baumer Aff.) ¶ 2. Toward the end of January
2019, however, Mr. Baumer testified that Mr. Silver told him that “he was having trouble
running, because his legs were hurting and felt like there were sharp, fire-like shooting pains in
his legs.” Id. ¶ 8. Moreover, Mr. Baumer witnessed Mr. Silver not only become more fatigued,
sitting out during their basketball games, and but also watched as he “stopped playing
completely” in their weekly basketball pick-up games. Tr. at 171. When the Secretary
questioned Mr. Baumer on what, if anything, he personally witnessed regarding Mr. Silver’s
deterioration in health during that time, Mr. Baumer testified that he saw him go from being
“somebody who was the most energetic sort of athletic player to a player who was often
fatigued, stopped playing, wasn’t nearly as energetic, effective.” Id. at 176.
In evaluating the credibility of testifying witnesses, special masters have broad discretion
in weighing witnesses’ demeanor and candor. Andreu, 569 F.3d at 1379; Bradley, 991 F.2d at
1575. Here, Mr. Silver, Ms. Cohen, and Mr. Baumer all presented as credible witnesses in the
sense that each person appeared to be testifying as honestly as his or her recollection of events
would permit. The credibility of the testimony was enhanced because the witnesses anchored
their testimony around certain events, for example, when Mr. Baumer stopped playing in his
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weekly pick-up games. The credibility of the witnesses’ testimonies was also strengthened by
the existence certain unknowns from one witness to another, suggesting that each person was
testifying based on his or her own memory, and that their testimony was not pre-rehearsed nor
developed together. For these reasons, the testimony of Mr. Silver, Ms. Cohen, and Mr. Baumer
fill the gap in information left in the medical records.
Finally, Mr. Silver reported having “shooting pains” “a few weeks” after his flu shot to
Dr. Felberg on October 19, 2019. Exhibit 7 at 15. While this October 19, 2019 report is not
contemporaneous with events in late January 2019 / early February 2019, Mr. Silver provided
this statement outside of the context of litigation. It does not appear that Mr. Silver had any
nefarious motivation for providing an intentionally incorrect account to a treating doctor.
Consequently, Dr. Felberg’s medical record provides some ancillary support to this finding. See
Tenneson v. Sec’y of Health & Hum. Servs., 142 Fed. Cl. 329 (2019) (indicating that a special
master is not arbitrary in relying upon a non-contemporaneous medical record to determine when
symptoms began).
Thus, upon review of the entire record, the undersigned finds preponderant evidence that
Mr. Silver’s alleged pain, numbness, and tingling in his legs began during the last week of
January 2019. This finding is based in part on the testimony and affidavits of Mr. Silver, Ms.
Cohen, and Mr. Baumer, as well as Mr. Silver’s contemporaneous gym records. See Exhibit 13
(Cohen Aff.); Exhibit 15, (Silver Aff.); Exhibit 16 (Baumer Aff.); Exhibit 18 (Silver Onset Aff.);
Exhibit 19 (Mr. Silver’s gym records). Although Mr. Silver has two medical records prior to his
hospitalization, nothing in those records directly negate his claim regarding symptom onset.
The finding that Mr. Silver had pain, numbness, and tingling in his legs starting at the end
of January needs to be placed in context. Although Mr. Silver experienced some pain, he was
still able to walk his dogs with his wife. Similarly, although Mr. Silver required frequent breaks
when he played basketball with his peers, he still was able to play until April of 2019. These
activities stand in contrast to his condition while hospitalized in Zurich, when he was placed on a
ventilator and could not walk at all.
Under these circumstances, the undersigned is not determining when Mr. Silver began to
experience a manifestation of GBS. See Knudsen by Knudsen v. Sec’y Health & Hum. Servs.,
35 F.3d 543, 549 (Fed. Cir. 1994) (“special masters are not ‘diagnosing’ vaccine-related
injuries”). Whether leg pains, numbness, and tingling in January 2019 is consistent with a
diagnosis of GBS in June 2019 will require evidence from an expert.
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V. Conclusion
The onset of petitioner’s pain, numbness, and tingling in his legs began during the last
week of January 2019. The parties are ordered to provide a copy of this fact ruling to any
expert witnesses. The experts must rely on the facts as found in this Ruling. Opinions that are
inconsistent with this finding are unlikely to be credited. See Burns, 3 F.3d at 417.
A status conference is set, sua sponte, for Wednesday, January 11, 2023 at 10:00 A.M.
The parties are encouraged to consider whether after this finding, an informal resolution based
upon the costs and risks of continued litigation is appropriate. If the parties are not mutually
interested in resolving this case, then a schedule for reports from experts will be set. See
Resp’t’s Status Rep., filed Mar. 30, 2022.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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