VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00151
Package ID: USCOURTS-cofc-1_20-vv-00151
Petitioner: N.B.
Filed: 2020-02-13
Decided: 2023-07-17
Vaccine: Tdap
Vaccination date: 2018-08-09
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
N.B. filed a petition on February 13, 2020, seeking compensation under the National Vaccine Injury Compensation Program. The petitioner alleged a left shoulder injury related to vaccine administration (SIRVA), a condition listed on the Vaccine Injury Table, after receiving a tetanus-diphtheria-acellular pertussis (Tdap) vaccine on August 9, 2018. The respondent was the Secretary of Health and Human Services. The petitioner was represented by Kathleen Margaret Loucks of Lommen Abdo Law Firm, and the respondent was represented by Mark Kim Hellie of the U.S. Department of Justice. Chief Special Master Brian H. Corcoran issued the decision on July 17, 2023.

Initially, the petitioner filed an affidavit and medical records. During a status conference, the parties discussed evidence that appeared contrary to the petitioner's claim of pain onset within 48 hours of vaccination, and the respondent noted a prior fall the petitioner experienced in February 2018. The petitioner later filed additional evidence, including a letter from an orthopedist seen approximately one year post-vaccination, corrections to medical records, and declarations from herself, her husband, three children, and a paralegal. The respondent filed a report arguing that the petitioner had not provided sufficient evidence of symptom onset within 48 hours of vaccination and that medical records showed the petitioner did not attribute her shoulder pain to the Tdap vaccine until July 2019, eleven months post-vaccination. The respondent also noted that the petitioner related her shoulder pain to the vaccination only after reading an article on SIRVA provided by her attorney.

In response, the petitioner filed supplemental declarations alleging pain on the night of vaccination and a note from her primary care provider clarifying the vaccination date. The Special Master had previously determined that the record did not support a finding of onset within 48 hours of vaccination, thus dismissing the Table SIRVA claim. However, the petitioner was given an opportunity to provide additional evidence for an off-Table claim. The petitioner stated she had no further evidence to present for her off-Table claim and relied on the existing briefing and evidence. The Special Master noted that the petitioner's own admission and contemporaneous medical records indicated she did not attribute her left shoulder pain to the Tdap vaccine until almost a year after vaccination, and she did not mention the vaccine as a potential cause until July 10, 2019. Medical records from earlier appointments showed no known cause for her pain, and treating physicians diagnosed conditions such as bursitis and osteoporosis, ordering therapies and an MRI, without mentioning the Tdap vaccination as a cause.

The only evidence supporting a causation-in-fact claim was the opinion of the second orthopedist seen in August 2019. However, this opinion relied on the petitioner's assertion of pain since the time of vaccination, which contradicted the Special Master's prior finding regarding onset. The Special Master found that this orthopedist's opinion lacked probative value because it was based on incorrect facts and an assumption previously rejected, and it was not established that the orthopedist reviewed all relevant evidence, including the petitioner's complete medical records. The Special Master concluded that the petitioner failed to provide preponderant evidence that the Tdap vaccine caused her left shoulder injury, either as a Table SIRVA claim due to lack of timely onset or as an off-Table claim due to a lack of established causation-in-fact. Consequently, the petition was dismissed for failure to prosecute and insufficient evidence.

Theory of causation field:
Petitioner N.B. alleged a left shoulder injury related to vaccine administration (SIRVA) after receiving a Tdap vaccine on August 9, 2018. The claim was dismissed because the petitioner failed to provide preponderant evidence of a timely onset of pain within 48 hours of vaccination required for a Table SIRVA claim. For an off-Table claim, the petitioner also failed to establish causation-in-fact. Petitioner's own statements and medical records indicated she did not attribute her shoulder pain to the vaccine until nearly a year later, and the medical opinion supporting causation from a second orthopedist was based on incorrect facts regarding the onset of pain, contradicting the Special Master's prior finding of onset several months post-vaccination. The public decision does not describe the specific medical theory or mechanism connecting the vaccine to the alleged injury, nor does it name any specific medical experts beyond the treating orthopedist whose opinion was rejected. The case was dismissed by Chief Special Master Brian H. Corcoran on July 17, 2023, for failure to prosecute and insufficient evidence. Petitioner was represented by Kathleen Margaret Loucks, and Respondent by Mark Kim Hellie.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00151-1
Date issued/filed: 2023-01-13
Pages: 13
Docket text: PUBLIC DECISION (Originally filed: 07/19/2022) regarding 37 Findings of Fact & Conclusions of Law,, Order to Show Cause, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:20-vv-00151-UNJ Document 43 Filed 01/13/23 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0151V
UNPUBLISHED
N.B., Chief Special Master Corcoran
Petitioner,
v. Filed: July 19, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Table Injury Dismissal; Tetanus,
Diphtheria, acellular Pertussis (Tdap)
Respondent. Vaccine; Shoulder Injury Related to
Vaccine Administration (SIRVA);
Onset of Shoulder Pain
Kathleen Margaret Loucks, Lommen Abdo Law Firm, Minneapolis, MN, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
DISMISSING TABLE CLAIM1
On February 13, 2020, N.B. filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine
Act”). Petitioner alleged that she suffered a left shoulder injury related to vaccine
administration (“SIRVA”), a defined Table Injury, after receiving a tetanus-diphtheria-
acellular pertussis (“Tdap”) vaccine on August 9, 2018. Petition at ¶¶ 1-3. She further
alleged that she experienced pain and discomfort within 48 hours of vaccination. Id. at ¶
5.
1 When this unpublished Fact Ruling was originally filed, I advised my intent to post it on the United States
Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note
(2012) (Federal Management and Promotion of Electronic Government Services). In accordance with
Vaccine Rule 18(b), Petitioner filed a timely motion to redact certain information. This Fact Ruling is being
posted with Petitioner’s name redacted to reflect initials only and the redaction of her specific area of legal
practice and son’s first name. Except for those changes and this footnote, no other substantive changes
have been made. This Fact Ruling will be posted on the court’s website with no further opportunity to move
for redaction.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-00151-UNJ Document 43 Filed 01/13/23 Page 2 of 13
For the reasons discussed below, a preponderance of the evidence supports the
conclusion that the onset of Petitioner’s left shoulder pain occurred later than 48 hours
post-vaccination – meaning she cannot establish the onset required for her Table SIRVA
claim, and therefore the Table claim must be dismissed. And a causation-in-fact version
of the claim can only go forward if Petitioner provides additional supporting evidence not
yet offered in the case.
I. Relevant Procedural History
The day after filing the Petition, N.B. filed an affidavit and medical records required
by the Vaccine Act. Exhibits 1-12, ECF No. 7; see Section 11(c). The case was activated
and assigned to SPU. ECF No. 10.
During the initial status conference, held on April 16, 2020, the parties discussed
evidence which appeared contrary to Petitioner’s claim of pain onset within 48 hours.
Order, issued Apr. 17, 2020, at 1-2, ECF No. 14. Respondent also raised the fall Petitioner
experienced in February 2018 – approximately six months prior to vaccination - as a
further complicating factor. Id. at 2. On July 2, 2020, Petitioner filed additional evidence
addressing these issues and the question of causation – a letter from the second
orthopedist seen approximately one-year post-vaccination, corrections to medical records
made approximately two years post-vaccination and one request which was denied, and
signed declarations3 from her husband, three of her children, a paralegal at her law firm,4
and herself. Exhibits 13-22, ECF No. 15.
On June 29, 2021, Respondent filed his Rule 4(c) Report opposing compensation
in this case. ECF No. 25. Specifically, Respondent argued that Petitioner “has not
provided preponderant evidence that the onset of her symptoms occurred within 48 hours
of vaccination.” Id. at 9; accord. at 9-12. He also stressed that the medical records show
Petitioner did not attribute her left shoulder pain to the Tdap vaccine until July 2019 –
eleven months post-vaccination (id. at 10-11) - and further admitted that she did not relate
her shoulder pain to this vaccination until she read an article on SIRVA that was provided
by her attorney (id. at 11).
3 These declarations are signed under penalty of perjury in accordance with 28 U.S.C.A. § 1746. Although
Petitioner previously provided a notarized affidavit (Exhibit 4), this filing is her first signed declaration.
Exhibit 17. Additionally, these statements are the first signed declarations for her husband, children, and
co-worker. Exhibits 18-22. Petitioner’s husband later provided a second signed declaration. See infra note
5.
4 Petitioner is an attorney. E.g., Exhibit 17 at ¶ 1 (Petitioner’s first signed declaration).
2

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In reaction, Petitioner filed supplement declarations5 from her husband and herself
alleging that she had experienced pain on the night of vaccination, a note from her primary
care provider (“PCP”) clarifying the date of vaccination, and a motion for a ruling on the
record as it currently stood. Exhibits 25-26, filed Aug. 26, 2021, ECF No. 27; Exhibit 27,
filed Aug. 30, 2021, ECF No. 29; Motion Petitioner’s Motion for a Ruling on the Record
(“Motion”), filed Aug. 31, 2021, ECF No. 31. During September 2021, Respondent filed a
response, and Petitioner filed medical literature and a reply. Response to Motion
(“Response”), filed Sept. 14, 2021, ECF No. 32; Exhibits 28-29, filed Sept. 21, 2021, ECF
No. 33; Petitioner’s Reply (“Reply”),6 filed Sept. 21, 2021, ECF No. 35.
II. Issue
At issue is whether Petitioner’s first symptom or manifestation of onset after
vaccine administration (specifically pain) occurred within 48 hours as set forth in the
Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table
SIRVA. 42 C.F.R. § 100.3(a) I.C & II.C. (2017) (Tdap vaccination); 42 C.F.R. §
100.3(c)(10)(ii) (required onset for pain listed in the QAI).
III. Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation,
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
5 Like those filed in July 2020 (see supra note 3), these declarations are signed under penalty of perjury in
accordance with 28 U.S.C.A. § 1746. Exhibits 25-26. They will be referred to herein as the second signed
declarations of Petitioner and her husband.
6 Because she filed her reply as a memorandum, Petitioner filed a motion to strike and refiled her reply.
Motion to Strike, filed Sept. 21, 2021. However, in subsequent email communications with the parties, she
was informed this correction was not needed. See Informal Remark, dated Oct. 5, 2021. The motion to
strike was deemed moot and was terminated. See Non-pdf Order, issued Oct. 5, 2021.
3

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1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” Murphy v. Sec’y of
Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,
1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd
per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as
incorrect the presumption that medical records are accurate and complete as to all the
patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has outlined four possible explanations
for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y
of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).
The credibility of the individual offering such fact testimony must also be determined.
Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley
v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within
the special master’s discretion to determine whether to afford greater weight to medical
4

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records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
IV. Relevant Factual Evidence
The medical records show that Petitioner did not experience any left shoulder pain,
injury, or dysfunction prior to vaccination. Petitioner suffered from osteoporosis, asthma,
abdominal pain, hypothyroidism, and common breast lumps. Exhibit 8 at 10-56. She also
complained of left sided chest pain in early February 2018, following a fall on her left side
while walking up some bleachers in Sweden. Exhibit 9 at 13. Although Respondent
initially questioned whether Petitioner’s later left shoulder pain could be attributed to this
fall, he did not raise the issue again in his Rule 4(c) Report, and Petitioner addressed this
issue in additional filings. See Exhibit 17 at ¶ 6 (Petitioner’s first signed declaration), 10-
32 (diary entries); Exhibit 19 at ¶ 5 (a son’s signed declaration).
The evidence regarding the onset and cause of Petitioner’s left shoulder pain is
less clear, however, even after Petitioner provided additional evidence on several
occasions. Thus, I will discuss this evidence as provided.
1. Initially Provided Evidence
Petitioner received the Tdap vaccine alleged as causal on August 9, 2018, when
seen for a laceration on her foot after stepping on a piece of plastic. Exhibit 1 at 9 (vaccine
record); Exhibit 8 at 57-60 (record from August 9th visit). Later that day, Petitioner spoke
to clinic personnel by phone, expressing her frustration at having received a Tdap
vaccine, as opposed to a tetanus-only vaccine. Exhibit 8 at 61-64. There is no mention of
any left shoulder pain in these medical records from that day.
In her affidavit, Petitioner stated that she did not feel unusual pain at the time of
vaccination, but did have pain within 48 hours. Exhibit 4 at ¶ 4. However, during the four
months post-vaccination, Petitioner sought treatment on multiple occasions without once
mentioning any left shoulder pain. For example, she returned to her PCP on November
9, 2018, complaining of a two-week history of blisters on her lips - described as
“sometimes painful and irritating,” increased itching and intermittent pain in her eyes, and
mild swelling of her ankles. Exhibit 8 at 65. Although first seen by a medical student at
this visit, Petitioner’s PCP indicated that she “personally performed the exam and medical
decision making and agree[d] with the student’s documentation.” Id. at 68. Later in
November, Petitioner saw her ophthalmologist for her eye issues and endocrinologist for
a check-up. Exhibit 5 at 28-36; Exhibit 6 at 26-28. Again, there is no mention of left
shoulder pain in the records from these visits. Id.
5

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Petitioner first complained of left shoulder pain at her annual physical with her PCP
on December 21, 2018 – more than four months post-vaccination. Exhibit 8 at 81. As
originally filed,7 the medical record from this visit indicated that Petitioner reported pain
that had been present for a few weeks - placing onset in late November or early December
2018. She described her pain as intermittent - lasting only a few minutes. Petitioner added
that she also had intermittent cramps in her feet and did not drink much water. Id. She
did not mention the Tdap vaccine she had received in early August 2018 at this visit. Id.
at 81-85. Petitioner was provided a handout with exercises for shoulder bursitis. Id. at 85.
In her affidavit, Petitioner insisted that she did not seek treatment for her left
shoulder pain prior to December 21, 2018, because she was traveling with her daughter
and that her appointments during this time were with her ophthalmologist and
endocrinologist. Exhibit 4 at ¶ 4. However, this statement ignores the November 9th visit
to her PCP. Petitioner also maintained that when she described her left shoulder pain to
her PCP in December 2018, she reported that she had been suffering from this pain for
months, rather than weeks as reflected in that record. Exhibit 4 at ¶ 5; see Exhibit 8 at 81.
In late February 2019, Petitioner visited an orthopedist, complaining of left shoulder
pain for the last three months – again placing onset months after vaccination (in late
November 2018 rather than August). Exhibit 11 at 5. Observed as having full strength
and range of motion (“ROM”), Petitioner chose to forego a steroid injection and begin
physical therapy (“PT”). Id. at 6. Petitioner “denie[d] any direct injury or previous surgery
or radiculopathy” (id. at 5), and made no mention of the Tdap vaccine she had received.
Id. at 5-6.
Petitioner again reported an onset of three months, plus no known cause for her
left shoulder pain, at her first PT session on March 4, 2019. Exhibit 11 at 13. She
described her pain as “intermittent and worsen[ing] as the day progresses.” Id. At her next
PT session on March 11th, Petitioner reported compliance with her home exercise
program despite being sick with the flu. Id. at 15. She reported additional soreness which
she attributed to the bed at her vacation rental at her April 1st session. Id. at 17. These
PT records do not contain any mention of the Tdap vaccine Petitioner received in August
2018. Id. at 13-19.
When Petitioner sought treatment at an urgent care facility on April 10, 2019, for a
headache and nausea, she also mentioned her “troubles with her left shoulder pain for
7 As discussed later in this fact ruling, Petitioner requested and obtained a correction to this medical record,
as well as one other, in May and June 2020. See infra Discussion in Section IV.2.
6

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the last several months.” Exhibit 9 at 20. It was noted that she had been diagnosed with
bursitis and was enrolled in PT. Id.
Petitioner saw her orthopedist several more times in April 2019, undergoing an
MRI on April 19th. Exhibit 11 at 7-12. The MRI revealed no evidence of a rotator cuff tear
but evidence of adhesive capsulitis - mild tendinosis, joint effusion, and bursitis. Id. at 9-
12. Noting that a steroid injection was still a treatment option, the orthopedist indicated
that Petitioner chose to continue PT. Id. at 10.
The first record entry mentioning the Tdap vaccine as a possible cause for
Petitioner’s left shoulder pain is from a visit to Petitioner’s PCP on July 10, 2019 – almost
a year after the vaccination at issue. Exhibit 6 at 35-36. This record shows the PCP noted
that an August 2017 Tdap shot (with the year a likely typographical error) was
administered in the same arm (id. at 35), and questioned whether the two were related
(id. at 36).
When seen by a different orthopedist on August 26, 2019, Petitioner “report[ed] an
initial onset of symptoms almost 1 year ago following a TDAP shot.” Exhibit 7 at 36. The
orthopedist stated that he had reviewed Petitioner’s April 19th MRI (id.), but there is
nothing to indicate he was provided with any other medical records such as those
containing the earlier provided histories. Id. at 36-42. Agreeing with the diagnosis of
adhesive capsulitis, this second orthopedist recommended Petitioner continue her PT and
undergo a fluoroscopically-guided injection if her symptoms continue. Id. at 42. Petitioner
continued to seek treatment from this second orthopedist and attended PT at a different
clinic – presumably one related to this new orthopedist. See Exhibit 7.
2. Evidence Provided After Onset Issue was Noted
In early July 2020, Petitioner provided additional evidence regarding the alleged
onset of her pain and the fall she suffered in February 2018 - a letter from the second
orthopedist, corrections to medical records, one request for a records correction which
was denied, and signed declarations from her husband, three of her children, a paralegal
at her law firm, and herself. Exhibits 13-22. However, much of the information provided in
these additional filings is inconsistent and is contradicted by evidence in the
contemporaneously created medical records.
In her first signed declaration, Petitioner maintained that she did not mention her
left shoulder pain at the November 9, 2018 visit to her PCP for mouth blisters and eye
pain and itching because those conditions were acute and she was not seen by her usual
PCP. Exhibit 17 at ¶ 5. However, in the contemporaneously created medical record,
7

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Petitioner described her canker sores as “sometimes painful and irritating.” Exhibit 8 at
65 (emphasis added). Additionally, at this visit, Petitioner also reported a concern of
swelling in her ankles, mentioning that she “noticed that at the end of the day her socks
leave an indent on her ankles.” Id.
In his first signed declaration, Petitioner’s husband described her constant and
acute left shoulder pain, which he insisted she suffered beginning in the early fall 2018,
prior to the November 2018 visit. Exhibit 18 at ¶¶ 3, 5-6. However, this depiction seems
to undercut Petitioner’s assertion that she did not mention her left shoulder pain at the
November 9th PCP visit because her mouth blisters and eye issues were more acute.
By Petitioner’s own admission, she did not realize that a vaccine could have
caused her left shoulder pain until provided an article about this injury by Petitioner’s
counsel. Exhibit 17 at ¶ 5. Although she did not specify the timing of this realization, it
appears to have been in late April 2019 at the earliest. Petitioner indicated that she asked
her first orthopedist about this possibility at her April 23, 2019 visit. Id. Her husband also
recalled these events, but identified the date of the visit as April 19th - which was the date
of Petitioner’s MRI. Exhibit 18 at ¶ 7; see Exhibit 11 at 9-12 (MRI results and April 23rd
orthopedic visit thereafter). Although they both claimed the first orthopedist agreed that
Petitioner’s injury could be vaccine-related, there is nothing in the medical record from
the April 23rd visit to support that allegation. Exhibit 11 at 9-10.
It appears that in May and June 2020, Petitioner sought alterations to the
contemporaneously created medical records from the initial treatment she pursued
through early April 2019, to show an earlier onset for her left shoulder pain than what was
previously reported. She obtained revised medical records from her December 21, 2018
PCP visit when she first sought treatment for her left shoulder pain and her initial visit to
her first orthopedist on February 20, 2019, which reflected an earlier onset than the late
November and early December onset previously identified. Exhibits 14-15. These medical
records show the alterations were made in May and June 2020. Exhibit 14 at 3
(addendum noted on June 12, 2020); Exhibit 15 at 1 (record amended on May 12, 2020).
There is still no mention of the Tdap vaccine in these records, and the notation of no
known mechanism of injury is still contained in the orthopedist’s record. Exhibit 15 at 1.
Petitioner also submitted a request made on May 6, 2020, to the urgent care clinic
where she was seen on April 10, 2019, which was denied. Exhibit 16. The specific reason
for the denial was noted to be the inability of the provider to “recall the details of [the] visit
with enough certainty to be able to change them.” Id. at 2.
8

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The declarations provided by Petitioner’s children were signed in May and June
2020 – almost two years post-vaccination. Exhibits 18-22. They described events during
the spring and summer of 2018, when Petitioner showed no left shoulder issues, such as
when Petitioner helped her daughter pack up and move out of the house she had rented
with friends during college in May 2018, her son move into his New York City apartment
in June 2018, and another son clean his apartment when visiting in July 2018. Exhibit 19
at ¶¶ 6-7, 9; Exhibit 20 at ¶¶ 3-4; Exhibit 21 at ¶ 4. One son and daughter also provided
details about visits after August 2018, when they saw their mother experience left
shoulder pain and difficulties. Exhibit 20 at ¶¶ 2, 5-8; Exhibit 21 at ¶¶ 5-7.
The signed declaration from the paralegal who worked with Petitioner stated that
she recalled Petitioner being upset about receiving the diphtheria and pertussis vaccines
when she returned to the office on August 9, 2018. Exhibit 22 at ¶ 7. She further recalled
that Petitioner “started experiencing pain in her left shoulder and arm soon after that,” but
provided no specific time frame for this information. Id. (emphasis added). Recalling that
Petitioner attended doctor and PT appointments thereafter, the paralegal indicated she
was unaware of any injury Petitioner suffered while in Sweden. Id. at Exhibit 22 at ¶¶ 8-
9.
In her first signed declaration, Petitioner emphasized that the second orthopedist
she first saw in August 2019, opined that the Tdap vaccine she received was the likely
cause of her shoulder pain. Exhibit 17 at ¶ 5. Describing this orthopedist as an orthopedic
surgeon and shoulder specialist, she provided a letter in which he stated his opinion
regarding causation and a handout given to her by a physician’s assistant who worked in
his clinic, who agreed that her injury was vaccine caused. Id.; see Exhibit 13 (letter from
the orthopedic surgeon); Exhibit 17 at 7-9 (handout). The handout distinguishes the
severe and persistent SIRVA pain, noted to be rare, from the transient and mild pain in
the deltoid usually experienced following vaccination. Exhibit 17 at 7. It also cites the
scientific/medical article which helped to prompt the addition of SIRVA to the Vaccine
Injury Table (a study of 13 cases in which 50 percent of the adults reported shoulder pain
immediately upon vaccination and 90 percent developed pain within 24 hours of
vaccination). Id.; see National Vaccine Injury Compensation Program: Revisions to the
Vaccine Injury Table, 80 Fed. Reg. 45132, 45136-37 (July 29, 2015).
3. Evidence Provided with Motion
Along with her motion, Petitioner provided supplemental signed declarations from
her husband and herself, containing the first descriptions of left shoulder pain the night of
vaccination. Exhibits 25-26 (second signed declarations). Both declarations were signed
in late August 2021. Exhibit 25 at 2; Exhibit 26 at 2. In all earlier reports of onset, Petitioner
9

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alleged only that her left shoulder pain began within 48 hours of vaccination. See, e.g.,
Exhibit 4 at ¶¶ 4, 7 (affidavit provided with the Petition). Petitioner also provided a
correction to the PCP medical record from July 10, 2019, which had mistakenly listed the
year of the Tdap vaccine as 2017, and copies of the article8 previously mentioned plus
another article9 stressing the importance of administering vaccines below the top third of
the deltoid muscle. Exhibits 27-29.
V. Findings of Fact
In the Vaccine Program, contemporaneously created “[m]edical records, in
general, warrant consideration as trustworthy evidence . . . [as they] contain information
supplied to or by health professionals to facilitate diagnosis and treatment of medical
conditions.” Cucuras, 993 F.2d at 1528 (emphasis added). The Federal Circuit has
instructed that greater weight should be accorded to this information even when the
information is provided by Petitioner. When these medical records are clear, consistent,
and complete, they should be afforded substantial weight. Lowrie, 2005 WL 6117475, at
*20.
Before the revisions requested by Petitioner, the contemporaneously created
medical records by themselves best supported the conclusion that Petitioner began to
experience left shoulder pain no sooner than late November or early December 2018 –
months after the August 2018 vaccination. Exhibit 8 at 81; Exhibit 11 at 5; Exhibit 11 at
13; Exhibit 9 at 20 (in chronological order). In these early histories given to four different
providers in December 2018 through April 2019, Petitioner provided the same, consistent
description for the onset of her pain. She also described her pain as intermittent – lasting
for only a few minutes to her PCP in December 2018. Exhibit 8 at 81. And in all medical
records, Petitioner failed to mention any connection to the Tdap vaccine she received in
August 2018. In fact, it was sometimes noted that there was no known cause for
Petitioner’s pain. See, e.g., Exhibit 11 at 13.
By Petitioner’s own admission, she did not attribute her left shoulder pain to the
Tdap vaccine she received in August 2018 until provided medical literature regarding
SIRVA injuries by her attorney. Exhibit 17 at ¶ 5. It is illogical to believe that Petitioner
would not have made this connection herself if she had experienced the timely onset of
left shoulder pain that she now claims. Indeed, Program claimants routinely report to
treaters (often close-in-time to vaccination) that they not only feel pain but that it began
8 S. Atanasoff et al., Shoulder Injury Related to Vaccine Administration (SIRVA), 28 Vaccine 8049 (2010).
9 M. Bodor and E. Montalvo, Vaccination Related Shoulder Dysfunction, 25 Vaccine 585 (2007).
10

Case 1:20-vv-00151-UNJ Document 43 Filed 01/13/23 Page 11 of 13
at the same time as, or not long after, vaccination – and they do so even without knowing
the medical (or legal) implications of their contention.
There is also a lack of any mention of left shoulder pain at multiple treater visits in
November 2018. Although many such visits were not necessarily instances in which
shoulder pain would be reported, they at least demonstrate Petitioner would seek
treatment for problems she was encountering – suggesting shoulder pain should also
have prompted a doctor’s visit. And she only described a close-in-time onset when seen
by a new orthopedist in late August 2019 – more than a year post-vaccination. Compare
Exhibit 8 at 65-68; Exhibit 5 at 28-36; Exhibit 6 at 26-28 with Exhibit 7 at 36.
The rationale Petitioner provided in her first signed declaration for this failure to
report onset consistent with the Table sooner is contradicted by other evidence. See
Exhibit 17 at ¶ 5. It is illogical to believe that Petitioner would have reported a seemingly
minor concern – of mild swelling in her ankles indicated by an indention from her sock,
during her November 2018 visit to her PCP, for example - without also mentioning the
significant left shoulder pain Petitioner, her husband, and her children later claimed she
was experiencing during this time. See Exhibit 8 at 65.
Later-provided histories (mostly contained in witness statements prepared for this
case) have reasonably been given less weight. It is natural for individual’s memories to
fade over time, and for events to become confused with the passage of time. Thus, the
descriptions provided by Petitioner and her family members, several years post-
vaccination, of events that occurred in 2018 and 2019, are not sufficient to counter the
consistent information regarding onset which can be found in the contemporaneously-
created medical records.
Petitioner has maintained that records that do not corroborate her onset allegations
are incorrect. To that end, she sought revised medical records from two of these providers
which conform to her later allegations. See Exhibits 14-15. However, there is no evidence
showing these alterations were based upon reliable evidence such as other
documentation maintained by these providers, or their shared recollections of these
events. Indeed - at least one provider refused to make the requested adjustment because
the change could not be verified. See Exhibit 16 at 2.
Overall, the record in this case better supports a finding that the onset of
Petitioner’s left shoulder pain developed in late November or early December 2018,
several months post-vaccination. She was noted as experiencing intermittent pain during
this time. Exhibit 8 at 81. The record as a whole does not support Petitioner’s assertion
of a pain beginning the night of August 9th, or even within 48 hours of vaccination as first
11

Case 1:20-vv-00151-UNJ Document 43 Filed 01/13/23 Page 12 of 13
alleged. Petitioner has thus failed to provide evidence to establish the onset required for
a Table SIRVA injury.
VI. Potential for Off-Table Claim
A petitioner’s failure to establish a Table injury does not necessarily constitute the
end of a case under all circumstances, because he or she might well be able to establish
a non-Table claim for either causation-in-fact or significant aggravation. See Althen v.
Sec’y of Health & Hum. Servs., 418 F.3d 1274 (Fed. Cir. 2005); W.C. v. Sec’y of Health
& Hum. Servs., 704 F.3d 1352, 1357 (Fed. Cir. 2013) (citing Loving v. Sec’y of Health &
Hum. Servs., 86 Fed. Cl. 135, 144 (2009)).
Here, however, any causation-in-fact claim cannot proceed unless Petitioner can
offer some evidence of causation consistent with my finding regarding onset. She must
establish a causal link and appropriate time frame between the vaccination she received
in August 2018 and pain which developed several months later, in late November or early
December.
At this point, the only evidence Petitioner has submitted which might support a
causation-in-fact claim – the opinion of the second orthopedist she saw in August 2019
and later - relies upon Petitioner’s assertion that she had suffered her left shoulder pain
since the time of vaccination, rather than later. See Exhibit 13 (letter from this second
orthopedist); Exhibit 7 at 1-11 (first visit to this second orthopedist). But as shown by the
handout and medical literature Petitioner supplied, an onset of pain very close in time to
vaccination is key to a SIRVA diagnosis. Exhibit 17 at 7 (handout citing the Atanasoff
article); Exhibit 28 at 2 (Atanasoff article). Almost all individuals suffering a SIRVA injury
experienced pain within 24 hours of vaccination, with approximately 50 percent
experiencing immediate pain. Id.
Although it is logical for the second orthopedist to have opined about causation
based upon the information he believed to be correct, treater opinions do not receive
evidentiary weight in the Program when they are based on incorrect facts. Rather, for any
treating physician opinion to be credible, it must be shown to be based upon all relevant
evidence in this case, including Petitioner’s complete medical records - unrevised and
revised versions. This also includes fact rulings made in the case.
As it presently stands, then, this treater opinion lacks probative value since it relies
on an assumption the present fact ruling rejects. If Petitioner wishes to proceed on a
causation-in-fact claim, she must provide some evidence showing that the left shoulder
pain she experienced in the fall of 2018 and later was caused by the Tdap vaccine she
12

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received in August 2018 – and that a SIRVA-like injury could so arise even if several
months after vaccination. Otherwise, the entire petition will be dismissed.
VII. Conclusion
Petitioner has not established the onset of her left shoulder pain occurred within
48 hours of her receipt of the Tdap vaccine on August 9, 2018. Accordingly, her Table
SIRVA claim is DISMISSED.
Before I provide the final ruling on the record requested by Petitioner, I will allow
her an opportunity to provide evidence to support a causation-in-fact claim, such as a
properly informed opinion of a treating physician. If Petitioner wishes to continue with her
causation-in-fact claim, she will need to provide sufficient additional evidence to justify
allowing the matter to go on.
Petitioner is hereby ORDERED to file other evidence needed to establish that
the Tdap vaccine she received on August 9, 2018, caused her left shoulder pain
which began several months later, or to Show Cause why this case should not be
dismissed for insufficient evidence, by Friday, September 2, 2022.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
13

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_20-vv-00151-2
Date issued/filed: 2023-07-17
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 06/13/2023) regarding 44 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-00151-UNJ Document 47 Filed 07/17/23 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0151V
UNPUBLISHED
N.B., Chief Special Master Corcoran
Petitioner, Filed: June 13, 2023
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Dismissal; Insufficient Evidence;
HUMAN SERVICES, Tetanus, Diphtheria, acellular
Pertussis (Tdap) Vaccine; Shoulder
Respondent. Injury Related to Vaccine
Administration (SIRVA)
Kathleen Margaret Loucks, Lommen Abdo Law Firm, Minneapolis, MN, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DISMISSING CASE1
On February 13, 2020, N.B. filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine
Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine
administration (“SIRVA”), a defined Table Injury, after receiving a tetanus-diphtheria-
acellular pertussis (“Tdap”) vaccine on August 9, 2018. Petition at ¶¶ 1-3.
The record as it currently stands does not support Petitioner’s claim. Specifically,
there is not only insufficient proof of a timely onset of Petitioner’s pain to establish a Table
SIRVA (as I previously held), but also a lack of evidence of causation. Thus, because
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).

Case 1:20-vv-00151-UNJ Document 47 Filed 07/17/23 Page 2 of 6
Petitioner has failed to provide preponderant evidence to support a causation-in-fact
version of the claim, the Petition is appropriately dismissed.
I. Relevant Procedural History
The day after filing the Petition, N.B. filed an affidavit and the medical records
required by the Vaccine Act. Exhibits 1-12, ECF No. 7; see Section 11(c). The case was
subsequently activated and assigned to SPU. ECF No. 10.
During the initial status conference, held on April 16, 2020, the parties discussed
evidence which appeared contrary to Petitioner’s claim of pain onset beginning within 48
hours of vaccination. Order, issued Apr. 17, 2020, at 1-2, ECF No. 14. Respondent also
noted the fall Petitioner experienced in February 2018 – approximately six months prior
to vaccination - as a further complicating factor. Id. at 2. On July 2, 2020, Petitioner filed
additional evidence addressing these issues and the question of causation – a letter from
the second orthopedist seen approximately one-year post-vaccination, corrections to
medical records made approximately two years post-vaccination (with one such request
having been denied), and signed declarations3 from her husband, three of her children, a
paralegal at her law firm,4 and herself. Exhibits 13-22, ECF No. 15.
On June 29, 2021, Respondent filed his Rule 4(c) Report opposing compensation
in this case. ECF No. 25. Specifically, Respondent argued that Petitioner “has not
provided preponderant evidence that the onset of her symptoms occurred within 48 hours
of vaccination.” Id. at 9; accord. at 9-12. He also stressed that the medical records show
Petitioner did not attribute her left shoulder pain to the Tdap vaccine until July 2019 –
eleven months post-vaccination (id. at 10-11) - and further that she did not relate her
shoulder pain to this vaccination until she read an article on SIRVA that was provided by
her attorney (id. at 11).
In reaction, Petitioner filed supplemental declarations5 from her husband and
herself alleging that she had experienced pain on the night of vaccination, a note from
3 These declarations are signed under penalty of perjury in accordance with 28 U.S.C.A. § 1746. Although
Petitioner previously provided a notarized affidavit (Exhibit 4), this filing is her first signed declaration.
Exhibit 17. Additionally, these statements are the first signed declarations for her husband, children, and
co-worker. Exhibits 18-22. Petitioner’s husband later provided a second signed declaration. See infra note
5.
4 Petitioner is an attorney. See, e.g., Exhibit 17 at ¶ 1 (Petitioner’s first signed declaration).
5 Like those filed in July 2020 (see supra note 3), these declarations are signed under penalty of perjury in
accordance with 28 U.S.C.A. § 1746. Exs. 25-26. They will be referred to herein as the second signed
declarations of Petitioner and her husband.
2

Case 1:20-vv-00151-UNJ Document 47 Filed 07/17/23 Page 3 of 6
her primary care provider clarifying the date of vaccination, and a motion for a ruling on
the record as it currently stood. Exhibits 25-26, filed Aug. 26, 2021, ECF No. 27; Exhibit
27, filed Aug. 30, 2021, ECF No. 29; Motion Petitioner’s Motion for a Ruling on the Record,
filed Aug. 31, 2021, ECF No. 31. During September 2021, Respondent filed a response,
and Petitioner filed medical literature and a reply. Response to Motion, filed Sept. 14,
2021, ECF No. 32; Exhibits 28-29, filed Sept. 21, 2021, ECF No. 33; Petitioner’s Reply,
filed Sept. 21, 2021, ECF No. 35.
After determining that Petitioner has failed to provide evidence to establish onset
within 48 hours of vaccination, I dismissed her Table SIRVA claim. Findings of Fact and
Conclusions of Law Dismissing Table Claim (“Table SIRVA Dismissal”), filed July 19,
2022, ECF No. 37. However, I allowed Petitioner the opportunity to provide additional
evidence to support a causation-in-fact claim. Id. at 13.
In response, Petitioner filed a status report, indicating “that she has no further
evidence to present for her off table claim and relies on the briefing and evidence filed to
date.” ECF No. 41. She also filed a motion seeking redaction of her name and other
information (ECF No. 38), which I granted in part (ECF No. 40).
The matter is now ripe for adjudication.
II. Applicable Legal Standards
Under Section 13(a)(1)(A) of the Act, a petitioner must demonstrate, by a
preponderance of the evidence, that all requirements for a petition set forth in section
11(c)(1) have been satisfied. A petitioner may prevail on her claim if the vaccinee for
whom she seeks compensation has “sustained, or endured the significant aggravation of
any illness, disability, injury, or condition” set forth in the Vaccine Injury Table (the Table).
Section 11(c)(1)(C)(i).
If, however, the vaccinee suffered an injury that either is not listed in the Table or
did not occur within the prescribed time frame, petitioner must prove that the administered
vaccine caused injury to receive Program compensation on behalf of the vaccinee.
Section 11(c)(1)(C)(ii) and (iii). In such circumstances, petitioner asserts a “non-Table or
[an] off-Table” claim and to prevail, petitioner must prove her claim by preponderant
evidence. Section 13(a)(1)(A). This standard is “one of . . . simple preponderance, or
‘more probable than not’ causation.” Althen, 418 F.3d at 1279-80 (referencing Hellebrand
v. Sec’y of Health & Hum. Servs., 999 F.2d 1565, 1572-73 (Fed. Cir. 1993). The Federal
Circuit has held that to establish an off-Table injury, petitioners must “prove . . . that the
vaccine was not only a but-for cause of the injury but also a substantial factor in bringing
about the injury.” Shyface v. Sec’y of Health & Hum. Servs., 165 F.3d 1344, 1351 (Fed.
3

Case 1:20-vv-00151-UNJ Document 47 Filed 07/17/23 Page 4 of 6
Cir 1999). Id. at 1352. The received vaccine, however, need not be the predominant
cause of the injury. Id. at 1351.
The Circuit Court has indicated that petitioners “must show ‘a medical theory
causally connecting the vaccination and the injury’” to establish that the vaccine was a
substantial factor in bringing about the injury. Shyface, 165 F.3d at 1352-53 (quoting
Grant v. Sec’y of Health & Hum. Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992)). The Circuit
Court added that "[t]here must be a ‘logical sequence of cause and effect showing that
the vaccination was the reason for the injury.’” Id. The Federal Circuit subsequently
reiterated these requirements in its Althen decision. See 418 F.3d at 1278. Althen
requires a petitioner
to show by preponderant evidence that the vaccination
brought about her injury by providing: (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.
Id. All three prongs of Althen must be satisfied. Id.
Finding a petitioner is entitled to compensation must not be “based on the claims
of a petitioner alone, unsubstantiated by medical records or by medical opinion.” Section
13(a)(1). Further, contemporaneous medical records are presumed to be accurate and
complete in their recording of all relevant information as to petitioner’s medical issues.
Cucuras v. Sec’y of Health & Hum. Servs., 993, F.2d 1525, 1528 (Fed. Cir. 1993).
Testimony offered after the events in questions is considered less reliable than
contemporaneous reports because the need for accurate explanation of symptoms is
more immediate. Reusser v. Sec’y of Health & Hum. Servs., 28 Fed. Cl. 516, 523 (1993).
III. Record As It Currently Stands Regarding Causation6
I previously determined the record in this case supports a finding that Petitioner
began experiencing intermittent left shoulder pain in late November or early December
2018, several months post-vaccination. Table SIRVA Dismissal at 11. As I cautioned
Petitioner at that time, to succeed under a causation-in-fact claim, she needed to offer
some evidence of causation consistent with my finding regarding onset.
6 I hereby incorporate the factual history and discussion set forth in my earlier ruling. See Table SIRVA
Dismissal, ECF No. 37.
4

Case 1:20-vv-00151-UNJ Document 47 Filed 07/17/23 Page 5 of 6
By Petitioner’s own admission, she did not attribute her left shoulder pain to the
Tdap vaccine she received in August 2018 until provided medical literature regarding
SIRVA injuries by her attorney. Exhibit 17 at ¶ 5. And the contemporaneously-created
medical records show Petitioner did not mention the Tdap vaccine as a potential cause
for her left shoulder pain until an appointment with her primary care provider on July 10,
2019, almost a year post-vaccination. Exhibit 6 at 35-36. At multiple earlier appointments
from late December 2018 through April 2019, Petitioner reported no known cause for her
left shoulder pain. See, e.g., Exhibit 8 at 81 (reporting intermittent left shoulder pain which
“[l]asts only minutes,” intermittent “charlie horses” in her feet, and a failure to “drink much
water” at an annual physical on December 21, 2018); Exhibit 11 at 5 (denying “any direct
injury of previous surgery or radiculopathy” at February 20, 2019 orthopedic visit); Exhibit
11 at 13 (reporting general left shoulder pain “with no known MOI[7]” at first physical
therapy session on March 4, 2019).
Similarly, none of the physicians who treated Petitioner before August 2019
mentioned this earlier Tdap vaccination as a potential cause for her left shoulder pain.
Instead, they diagnosed Petitioner as suffering from bursitis, osteoporosis, and left
shoulder impingement with underlying adhesive capsulitis; provided a handout on bursitis;
and ordered osteoporosis therapy, magnesium oxide or tonic water, and an MRI. Exhibit
8 at 84-85; Exhibit 11 at 8.
The only evidence which supports a causation-in-fact claim is the opinion of the
second orthopedist Petitioner first saw in August 2019 (a year after vaccination). Exhibit
13. Although he did opine that Petitioner’s pain was due to the vaccine she received, the
orthopedist clearly relied upon Petitioner’s assertion that she had suffered left shoulder
pain since the time of vaccination, rather than later. See Exhibit 13 (letter from this second
orthopedist); Exhibit 7 at 1-11 (first visit to this second orthopedist). It has not been
established that he was ever provided with or reviewed any other evidence relevant to
this opinion – such as Petitioner’s medical records and earlier-provided medical histories.
And it is facially contrary to my onset fact determination.
Treater opinions do not receive evidentiary weight in the Program when they are
based on incorrect facts. Snyder v. Sec'y of Health & Hum. Servs., No. 01–0162V, 2009
WL 332044, at *187 n.523 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), mot. for review den’d, 88
Fed. Cl. 706 (2009) (discussing the importance of an accurate factual basis for any
treating physician or expert opinion). A special master may thus reject expert opinion if
based “on facts not substantiated by the record.” Burns v. Sec'y of Health & Hum. Servs.,
3 F.3d 415, 417 (Fed. Cir. 1993). Accordingly, for any treating physician opinion to be
credible, it must be shown to have been based upon all relevant evidence in this case,
7 MOI stands for mechanism of injury. MEDICAL ABBREVIATIONS at 384 (16th ed. 2020).
5

Case 1:20-vv-00151-UNJ Document 47 Filed 07/17/23 Page 6 of 6
including Petitioner’s complete medical records - unrevised and revised versions.8 Due to
its faulty foundation and reliance on an assumption I have previously rejected, the
orthopedist’s opinion lacks probative value.
As shown by the handout and medical literature Petitioner supplied, an onset of
pain very close in time to vaccination is key to a SIRVA diagnosis. Exhibit 17 at 7 (handout
citing the Atanasoff article); Exhibit 28 at 2 (Atanasoff article). Almost all individuals
suffering a SIRVA injury experienced pain within 24 hours of vaccination, with
approximately 50 percent experiencing more immediate pain. Id. Because this case does
not involve such an immediate onset, Petitioner was required to provide preponderant
evidence establishing that pain manifesting three months after vaccine administration was
reflective of a SIRVA injury. But Petitioner has failed to provide even a minimal amount
of evidence showing that the left shoulder pain she experienced in the fall of 2018 and
later was caused by the Tdap vaccine she received in August 2018 – and that a SIRVA-
like injury could so arise even if several months after vaccination. Therefore, the entire
petition will be dismissed.
Conclusion
To date, and despite ample opportunity, Petitioner has failed to provide
preponderant evidence to support her allegation of a left shoulder injury which meets the
Table SIRVA definition. Nor can she preponderantly establish that her injury was more
likely than not caused by the Tdap vaccine she received on August 9, 2018. Petitioner
was informed that failure to provide preponderant to support her claim would be treated
as either a failure to prosecute this claim or as an inability to provide supporting
documentation for the claim.
Accordingly, this case is DISMISSED for failure to prosecute and insufficient
evidence. The Clerk of Court shall enter judgment accordingly.9
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8 See Isaac v. Sec'y of Health & Hum. Servs., No. 08-601V, 2012 WL 3609993, at *17 (Fed. Cl. Spec. Mstr.
July 30, 2012), mot. for rev. denied, 108 Fed. Cl. 743 (2013), aff'd, 540 F. Appx. 999 (Fed. Cir. 2013)
(discussing the factors to be considered when weighing the value of a treating physician’s opinion).
9 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
6