VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01278 Package ID: USCOURTS-cofc-1_20-vv-01278 Petitioner: Sharon K. Dixon Filed: 2020-05-15 Decided: 2023-07-11 Vaccine: influenza Vaccination date: 2018-09-21 Condition: left shoulder injury related to vaccine administration (SIRVA) Outcome: dismissed Award amount USD: AI-assisted case summary: Sharon K. Dixon filed a petition alleging a left shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on September 21, 2018. She reported pain starting within hours of the vaccination, which persisted for several months and involved multiple medical visits and treatments, including physical therapy and steroid injections. However, the medical records showed a significant gap of approximately eighteen months, from February 2019 to August 2020, during which Ms. Dixon did not seek treatment for shoulder pain, despite seeking care for other unrelated medical issues. The respondent moved to dismiss, arguing that Ms. Dixon failed to meet the Vaccine Act's "severity requirement," which mandates that residual effects of the injury persist for more than six months after vaccination. The court agreed, finding that the evidence did not preponderantly establish that Ms. Dixon's injury persisted for the required six months, particularly given the extended treatment gap. Consequently, the court dismissed the case for failure to meet the severity requirement, and no compensation was awarded. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01278-0 Date issued/filed: 2023-07-11 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 05/15/2023) regarding 32 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01278-UNJ Document 34 Filed 07/11/23 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1278V UNPUBLISHED SHARON K. DIXON, Chief Special Master Corcoran Petitioner, Filed: May 15, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Shoulder HUMAN SERVICES, Injury Related to Vaccine Administration (SIRVA); Six Month Respondent. Severity Requirement David Alexander Tierney, Rawls Law Group (Richmond), Richmond, VA, for Petitioner. Madelyn Weeks, U.S. Department of Justice, Washington, DC, for Respondent. DECISION DISMISSING CASE1 On September 28, 2020, Sharon K. Dixon (“Petitioner”) 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”) as a result of an influenza (“flu”) vaccine administered on September 21, 2018. Petition at 1. 1 Because this unpublished fact ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the fact ruling 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 (2012). Case 1:20-vv-01278-UNJ Document 34 Filed 07/11/23 Page 2 of 7 On July 27, 2022, Respondent filed a Motion to Dismiss, contending that Petitioner could not meet the Vaccine Act’s “severity” requirement. Petitioner opposes the motion (ECF No. 28 (“Opp.”), and Respondent filed a reply on September 28, 2022. ECF No. 30. For the reasons discussed below, I find Respondent’s motion meritorious, and therefore dismiss the claim. I. Procedural History Almost two years after the claim’s initiation, Respondent filed his Rule 4(c) Report in July 2022, arguing that compensation is not appropriate in this case, because Petitioner could not establish that she suffered the residual effects of her SIRVA for more than six months. Respondent’s Rule 4(c) Report (“Report”), ECF No. 25, at 8-9. Accordingly, a motion to dismiss accompanied the Rule 4(c) Report. ECF No. 26. As noted above, Petitioner opposes dismissal. II. Factual Background Petitioner received the flu vaccine on September 21, 2018, at her primary care provider. Ex. 3 at 12, 399.3 Three days later, she contacted her primary care provider on September 24, 2018, reporting that her arm was sore following the vaccination. Further, Petitioner reported that her arm hurt from the shoulder to the elbow, “especially when she lifts her arm up.” Ex. 3 at 399-400. Petitioner again complained of arm pain following her flu vaccine on October 8, 2018. Id. at 380. Petitioner was advised, however, that the pain would resolve on its own, and it was recommended she attempt conservative treatments such as ice packs, Tylenol, and ibuprofen. Id. Petitioner again saw her treater on October 19, 2018, reporting “constant” arm pain since her vaccination, and that she was “almost unable to lift her left arm due to pain.” Id. at 379-80. A five-day course of prednisone was prescribed. Id. at 379. On November 7, 2018, Petitioner returned to her primary care physician, again reporting left shoulder and arm pain since her receipt of the flu vaccine. Ex. 3 at 334. An examination showed tightness in her upper trapezius and tenderness upon palpitation. Id. at 335-36. Petitioner’s strength was normal, but she exhibited difficulty moving her shoulder over her head. Id. at 336. She was assessed with cross syndrome or “impingement issue”. Id. 3 Petitioner had no history of prior left shoulder or arm pain. Ex. 3 at 467, 536. 2 Case 1:20-vv-01278-UNJ Document 34 Filed 07/11/23 Page 3 of 7 Petitioner subsequently presented to William Latimer, PA-C, at Indiana University Health Orthopedics, for ongoing left shoulder pain. Ex. 4 at 6. An examination noted full rotator cuff strength and range of motion (with pain), and anterior joint line tenderness. Id. An x-ray was unremarkable, and she was diagnosed with impingement syndrome. Id. A cortisone injection was administered as well. Id. She began physical therapy on November 16, 2018. Ex. 5 at 25. Records from the follow-up with PA Latimer on December 5, 2018, stated Petitioner’s pain and range of motion had improved partially. Ex. 4 at 4. At that time, she still experienced pain with overhead movements. Id. But by January 2, 2019, Petitioner was discharged from physical therapy after ten sessions. Ex. 5 at 6-8. She now rated her pain as one out of ten at rest, and three out of ten with activity. Id. at 6. She also had improved range of motion, strength, and posture, although still found it difficult to engage in overhead tasks. Id. On January 16, 2019, Petitioner had an annual physical. Ex. 3 at 279. She requested a refill of a meloxicam prescription she was taking for her shoulder pain at that time. An examination revealed tenderness when her shoulder was palpated, but full range of motion and strength. Id. at 280. She was assessed with osteoarthritis “with likely impingement.” Id. Petitioner continued to report some residual pain at a follow-up appointment with PA Latimer on February 11, 2019. Ex. 4 at 2. An examination showed a full range of motion and strength, but also complained of minor pain and anterior joint line tenderness. Id. A second steroid injection was administered at that time, and she was directed to seek follow-up visits as needed. Id. It was now almost five months from the date of vaccination. The medical record thereafter – for the next approximately eighteen months – includes numerous doctor’s visits, but no additional reports of shoulder pain. These include: - A visit to urgent care on March 23, 2019, for treatment of acute sinusitis and lower abdominal pain (Ex. 3 at 221-22); - A visit to her primary care physician on March 25, 2019, for right flank pain and suprapubic pain for the past five days (Ex. 3 at 220-22); - Hospitalization from April 4, 2019 to April 5, 2019 for diverticulitis (Ex. 3 at 168); 3 Case 1:20-vv-01278-UNJ Document 34 Filed 07/11/23 Page 4 of 7 - A follow-up appointment regarding diverticulitis and to discuss hypertension, high blood pressure, and mild anxiety on April 26, 2019 (Ex. 3 at 130-32); - An appointment on July 16, 2019 to discuss diverticulitis and hypertension wherein Petitioner “feels well overall and has no major acute complaints at this time” (Ex. 3 at 82); and - A follow-up appointment on January 17, 2020 for right sided back pain, and a persistent “tickle in throat” since being sick in December that also lists osteoarthritis of the left shoulder as a chronic problem (Ex. 3 at 22-24). During these visits, shoulder pain (other than osteoarthritis) is not discussed or listed as a chronic problem. And there is no record in this lengthy period of time when Petitioner complained of shoulder issues or sought treatment specific to such problems – in contrast to her history between the September 2018 vaccination and her February 2019 visit with PA Latimer, which reveals numerous specific visits for treatment of allegedly vaccine- related shoulder pain. Petitioner next sought care for shoulder pain on August 4, 2020, which the record from this doctor’s visit describes as “chronic recurrent left shoulder and upper arm pain without specific preceding injury.” Ex. 4 at 12. She rated her pain as four out of ten, but ten out of ten at worst. Ex. 4 at 12. An examination showed full strength with no pain, but mildly limited range of motion. Id. at 13. Petitioner was diagnosed with impingement of left shoulder, adhesive capsulitis, and osteoarthritis. Id. at 13. A third steroid injection was administered. Id. In addition to the aforementioned records, Petitioner has submitted an affidavit in support of her petition, signed on September 25, 2020. Ex. 1. She asserts that she received a flu vaccine on September 21, 2018 and felt pain “[r]ight before the needle was removed”. Id. at 1. The affidavit also describes her course of treatment from September 2018 through February 11, 2019. However, it does not address the eighteen-month gap between February 2019 and August 2020. Stephanie Dixon, Petitioner’s daughter, also submitted an affidavit. Ex. 2. Ms. Dixon describes Petitioner’s complaints of shoulder pain from September 21, 2018 through November of 2018 (and hence also admits discussion of the gap period). Id. 4 Case 1:20-vv-01278-UNJ Document 34 Filed 07/11/23 Page 5 of 7 III. Legal Standard Before compensation can be awarded under the Vaccine Act, a petitioner must demonstrate, by a preponderance of evidence, all matters required under Section 11(c)(1), including the factual circumstances surrounding her claim. Section 13(a)(1)(A). In making this determination, the special master or court should consider the record as a whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or by medical opinion. Id. In particular, a petitioner must establish that she suffered an injury meeting the Table criteria (i.e. a Table injury), in which case causation is presumed, or an injury shown to be caused-in-fact by the vaccination she received. If a petitioner establishes a Table injury the burden shifts to respondent to establish a more likely alternative cause. Section 13(a)(1)(A), 11(c)(1)(C)(i), 14(a). If a petitioner cannot establish a Table injury, he or she may pursue causation-in-fact under the legal standard set forth in Althen v. Sec'y of Health & Hum. Servs., 418 F. 3d 1274, 1278 (Fed. Cir. 2005). In addition to causation, a petitioner must also meet the requirements establishing that the vaccine received is “covered” by the Program, the duration and severity of petitioner’s injury, and the lack of other award or settlement.4 With regard to severity, a petitioner must show that she suffered the residual effects or complications of her injury or condition for more than six months after the administration of the vaccine. § 11(c)(1)(D)(i); see Song v. Sec'y of Health & Hum. Servs., 31 Fed. Cl. 61, 65-66 (1994), aff'd, 41 F.3d 1520 (Fed. Cir. 2014) (noting that a petitioner must demonstrate the six-month severity requirement by a preponderance of the evidence). Finding that petitioner has met the severity requirement cannot be based on petitioner's word alone, though a special master need not base their finding solely on medical records. Section 13(a)(1); see Colon v. Sec'y of Health & Hum. Servs., 156 Fed. Cl. 534, 541 (2021). Severity must be established regardless of whether the claim arises under the Table or is a causation-in-fact claim. IV. Analysis Petitioner asserts, and Respondent does not contest, that she meets all of the core requirement for a Table SIRVA. Report at 8. Specifically, Petitioner had no history of pain of dysfunction of her left shoulder; pain occurred within 48 hours of vaccination; pain was 4 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered either in the United States and its territories or in another geographical area but qualifying for a limited exception; suffered the residual effects of her injury for more than six months, died from her injury, or underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E). 5 Case 1:20-vv-01278-UNJ Document 34 Filed 07/11/23 Page 6 of 7 limited to her left shoulder; and no other condition or abnormality would explain Petitioner’s shoulder pain. See 42 C.F.R. §§ 100.3(a)(XIV)(A); 100.3(c)(10) (Qualifications and Aids to Interpretation setting forth the requirements of establishing a SIRVA Table injury). But the “severity requirement” mut also be satisfied. Because Petitioner received her vaccine on September 21, 2018, and alleges immediate pain (or at least pain within the 48-hour Table timeframe for a SIRVA injury), severity must be established at least through March 21, 2019 (six months after onset). This record, however, establishes pain only through February 11, 2019. Ex. 4 at 2. Thereafter it is silent for approximately eighteen months, despite Petitioner seeking treatment for other, unrelated issues which she does not attribute to the vaccine (for example, care related to hypertension or a “tickle in throat), and which otherwise could not be construed as associated. Ex. 3 at 22-24, 82. Petitioner argues that severity is established. She sought care continuously for five months, and despite the eighteen-month gap her pain was later described as chronic and recurrent. Further, Petitioner asserts that mention of left shoulder osteoarthritis on January 17, 2020 is evidence of continuing left shoulder pain. Response at 4-5. However, in order for the reports of osteoarthritis to be relevant, Petitioner would need to preponderantly show that it is casually linked to her SIRVA, which she has not done. Petitioner also argues that the intervening medical appointments were not occasions on which she would be expected to complain of shoulder issues. Rather, those treatment events were primarily for diverticulitis. Response at 4-5. In many circumstances (and especially in the early “stages” of SIRVA, when claimants often reasonably expect the pain will cease), I give weight to the fact that intervening medical treatment visits were specific for a distinguishable medical issue. Dempsey v. Sec'y of Health & Hum. Servs., No. 18-0970, 2021 WL 1080563, at *4 (Fed. Cl. Spec. Mstr. Feb. 17, 2021); Couch v. Sec'y of Health & Hum. Servs., No. 20-1246V, 2022 WL 1618116, at *6 (Fed. Cl. Apr. 7, 2022). But here, the record shows that Petitioner did not delay in seeking treatment for her shoulder pain. On the contrary – within two months of vaccination alone, she sought medical assistance four times for her shoulder issues. Thus, the record supports the conclusion that the Petitioner was not one to avoid medical treatment when she felt it necessary – thereby corroborating the conclusion that she would have gone to the doctor for her SIRVA during the 18-month treatment gap had she still been experiencing sequelae. But she did not – indeed, there are several instances where records either note no acute problems (Ex. 3 at 82 (Petitioner stating that she “feels well overall and has no major acute complaints at this time”)) or specifically do not describe shoulder problems 6 Case 1:20-vv-01278-UNJ Document 34 Filed 07/11/23 Page 7 of 7 despite discussing seemingly minor complaints. Id. at 22-24 (January 17, 2020, appointment for right sided back pain and persistent “tickle in throat”). Given the above, I cannot conclude that the record preponderantly establishes Petitioner’s injury persisted for the six months required by the Act. Such a lengthy treatment gap is too large to ignore in this case given the facts, and allows for the possibility of other intervening factors as more likely explanatory of Petitioner’s subsequent shoulder complaints than her fall 2018 injury. Conclusion The evidentiary record does not support Petitioner’s contention that she experienced the residual effects or complications of her injury for more than six months after onset. Because Petitioner has failed to meet the severity requirement set forth in § 11(c)(1)(D)(i), Petitioner cannot establish entitlement, and therefore I must DISMISS her claim in its entirety. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accord with this Decision.5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 5 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01278-cl-extra-10736745 Date issued/filed: 2023-12-14 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270155 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1278V SHARON K. DIXON, Chief Special Master Corcoran Petitioner, Filed: November 13, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. David Alexander Tierney, Rawls Law Group (Richmond), Richmond, VA, for Petitioner. Madelyn Weeks, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On September 28, 2020, Sharon K. Dixon (“Petitioner”) 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”), which meets the Table definition or was caused, or in the alternative significantly aggravated, by the influenza (“flu”) vaccine she received on September 21, 2018. Petition at 1¶ 2. After determining that Petitioner had failed to provide sufficient evidence to support her claim - specifically in support of the six-month severity requirement - I granted 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). Respondent’s motion (ECF No. 26) and dismissed Petitioner’s claim. ECF No. 32; see Section 11(c)(1)(D)(i) (severity requirement). On September 15, 2023, Petitioner filed a request for an award of $15,652.37 in attorney’s fees and costs. Petitioner’s Application for Attorneys’ Fees and Costs at ¶ 4, ECF No. 35. She did not address the statutory requirements of good faith and reasonable basis, however - prerequisites for any attorney’s fees and costs award in unsuccessful cases. See Section 15(e)(1). On September 29, 2023, Respondent filed a response, arguing that “[P]etitioner has failed to establish a reasonable basis for her claim [and] is not entitled to an award of fees and costs.” Respondent’s Response to Petitioner’s Motion for Attorneys’ Fees and Costs at 1, ECF No. 36. Specifically, he contends that “[P]etitioner made no attempt to explain why she did not seek further care for her left shoulder pain after her February 11, 2019 visit with Dr. Latimer, nor does she explain why she waited eighteen months to seek further care.” Id. at 8. He therefore maintains that “[P]etitioner has not provided more than a scintilla of objective evidence that her alleged injury lasted for more than six months.” Id. Petitioner did not file a reply. For the reasons discussed below, Petitioner has failed to establish there was a reasonable basis for her claim. Thus, she is not entitled to an award of attorney’s fees and costs, and the fees motion is denied. I. Applicable Legal Standards Motivated by a desire to ensure that petitioners have adequate assistance from counsel when pursuing their claims, Congress determined that attorney’s fees and costs may be awarded even in unsuccessful claims. H.R. REP. NO. 99-908, at 22 reprinted in 1986 U.S.C.C.A.N. 6344, 6363; see also Sebelius v. Cloer, 133 S.Ct. 1886, 1895 (2013) (discussing this goal when determining that attorneys’ fees and costs may be awarded even when the petition was untimely filed). This is consistent with the fact that “the Vaccine Program employs a liberal fee-shifting scheme.” Davis v. Sec’y of Health & Hum. Servs., 105 Fed. Cl. 627, 634 (2012). Indeed, it may be the only federal fee-shifting statute that permits unsuccessful litigants to recover fees and costs. However, Congress did not intend that every losing petition be automatically entitled to attorney’s fees. Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). And there is also a prerequisite to even obtaining fees in an unsuccessful case. The special master or court may award attorney’s fees and costs to an unsuccessful claimant only if “the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” Section 15(e)(1). Reasonable basis is a 2 prerequisite to a fee award for unsuccessful cases – but establishing it does not automatically require an award, as special masters are still empowered by the Act to deny or limit fees. James-Cornelius on behalf of E. J. v. Sec'y of Health & Hum. Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021) (“even when these two requirements are satisfied, a special master retains discretion to grant or deny attorneys’ fees”). As the Federal Circuit has explained, whether a discretionary fees award is appropriate involves two distinct inquiries, but only reasonable basis is at issue herein.3 Reasonable basis is deemed “an objective test, satisfied through objective evidence.” Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (“Cottingham I”). “The reasonable basis requirement examines “not at the likelihood of success [of a claim] but more to the feasibility of the claim.” Turner, 2007 WL 4410030, at *6 (quoting Di Roma v. Sec’y of Health & Hum. Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). The Federal Circuit recently explained “that a reasonable basis analysis is limited to objective evidence, and that subjective considerations, such as counsel’s subjective views on the adequacy of a complaint, do not factor into a reasonable basis determination.” James-Cornelius, 984 F.3d at 1379. Although clearly easier to meet than the preponderant standard required for compensation, “courts have struggled with the nature and quantum of evidence necessary to establish a reasonable basis.” Wirtshafter v. Sec’y of Health & Hum. Servs., 155 Fed. Cl. 665, 671 (Fed. Cl. 2021). “[I]t is generally accepted that ‘a petitioner must furnish some evidence in support of the claim.’” Id. Citing the prima facie elements of a successful claim described in Section 11(c)(1), the Federal Circuit recently instructed that the level of the objective evidence sufficient for a special master to find reasonable basis should be “more than a mere scintilla but less than a preponderance of proof.” Cottingham I, 971 F.3d at 1345-46. “This formulation does not appear to define reasonable basis so much as set its outer bounds.” Cottingham v. Sec’y of Health & Hum. Servs., 159 Fed. Cl. 328, 333, (Fed. Cl. 2022) (“Cottingham II”). “[T]he Federal Circuit’s statement that a special master ‘could’ find reasonable basis based upon more than a mere scintilla does not mandate such a finding.” Cottingham II, 159 Fed. Cl. at 333 (citing Cottingham I, 971 F.3d at 1346). Furthermore, the issue of reasonable basis is not a static inquiry. The reasonable basis which existed when a claim was filed may cease to exist as further evidence is 3 Claimants must also establish that the petition was brought in good faith. Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (quoting Chuisano v. Sec’y of Health & Hum. Servs., 116 Fed. Cl. 276, 289 (2014)). “[T]he ‘good faith’ requirement . . . focuses upon whether petitioner honestly believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Hum. Servs., No. 99- 0544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). But good faith is not disputed herein, and I do not ascertain evidence in the record calling it into question. 3 presented. Perreira, 33 F.3d at 1377. In Perreira, the Federal Circuit affirmed a special master’s determination that reasonable basis was lost after Petitioner’s “expert opinion, which formed the basis of the claim, was found to be unsupported by either medical literature or studies.” Id. at 1376. II. Evidence Provided by Medical Records and Affidavits Prior to vaccination, Petitioner had no history of prior left shoulder or arm pain. Exhibit 3 at 467, 536. She received the flu vaccine alleged as causal on September 21, 2018, during a visit to her primary care provider (“PCP”). Exhibit 3 at 12, 399. Thereafter in September and October 2018, Petitioner visited her PCP on three occasions, complaining of left arm soreness and pain to her elbow, especially when lifting her arm. Exhibit 3 at 379-80, 399-400. Noting that this was a common post-vaccination reaction, the PCP initially advised Petitioner to pursue conservative treatments such as ice packs, Tylenol, and ibuprofen. Id. at 380, 399. He later prescribed a five-day course of prednisone. Id. at 379. On November 7, 2018, Petitioner returned to her PCP for treatment of continued left shoulder and arm pain. Exhibit 3 at 334. She reported that the level of her pain decreased to two out of ten when taking the prescribed oral steroids but returned to seven out of ten thereafter. Id. An examination showed tightness in her upper trapezius and tenderness upon palpitation, but normal strength. Id. at 335-36. Exhibiting difficulty moving her shoulder over her head, Petitioner was assessed with cross syndrome or “impingement issue.” Id. at 336. The PCP ordered a referral to orthopedics for a possible steroid injection and prescribed physical therapy (“PT”). Id. Two days later, On November 9, 2018, Petitioner was seen by William Latimer, PA-C, at Indiana University Health Orthopedics, for ongoing left shoulder pain. Exhibit 4 at 6. She reported pain at a level of four to five with rest and seven to eight with movement. During his examination, PA Latimer observed full rotator cuff strength and range of motion (with pain) and anterior joint line tenderness. Id. He diagnosed Petitioner with impingement syndrome and administered a cortisone injection. Id. at 6-7. Petitioner began PT on November 16, 2018. Exhibit 5 at 25. By November 30, 2018, her pain had decreased to one at rest and three with movement. Id. at 6. At a follow- up visit with PA Latimer on December 5, 2018, Petitioner reported improvements in her pain and range of motion, but a continued inability to reach behind her back and pain with overhead movement. Exhibit 4 at 4. She continued to take Meloxicam4 for her pain. Id. 4 Meloxicam is “a nonsteroidal anti-inflammatory drug used in the treatment of osteoarthritis. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1126 (32th ed. 2012). 4 In her January 2, 2019 discharge summary, following ten PT sessions, Petitioner’s pain remained at the level reported in late November 2018, and she had met all long-term goals. Exhibit 5 at 6-7. At her annual physical on January 16, 2019, Petitioner requested a refill of her Meloxicam prescription, which she was taking for her left shoulder pain. Exhibit 3 at 279. An examination revealed tenderness when her shoulder was palpated, but full range of motion and strength. Id. at 280. She was assessed with osteoarthritis “with likely impingement.” Id. Petitioner continued to report some residual pain at a follow-up appointment with PA Latimer on February 11, 2019, less than five months post-vaccination, but an examination showed full range of motion. Exhibit 4 at 2. PA Latimer administered a second steroid injection and directed Petitioner to seek follow-up visits as needed. Id. Thereafter, the medical records reveal numerous doctor visits – for the next approximately eighteen months, in fact - but no additional reports of shoulder pain. This treatment is described as follows: • A visit to urgent care on March 23, 2019, for treatment of acute sinusitis and lower abdominal pain (Exhibit 3 at 221-22); • A visit to her primary care physician on March 25, 2019, for right flank pain and suprapubic pain for the past five days (id. at 220-22); • A hospitalization from April 4, 2019, to April 5, 2019, for diverticulitis (id. at 168); • A follow-up appointment regarding diverticulitis and to discuss hypertension, high blood pressure, and mild anxiety on April 26, 2019 (id. at 130-32); • A visit to her PCP on July 16, 2019, to discuss diverticulitis and hypertension wherein Petitioner “feels well overall and has no major acute complaints at this time” (id. at 82); and • A follow-up appointment on January 17, 2020 for right sided back pain, and a persistent “tickle in throat” since being sick in December that also lists osteoarthritis of the left shoulder as a chronic problem (id. at 22-24). These medical records did not list shoulder pain as a chronic issue and contain only a few references left shoulder osteoarthritis with notations showing the last update 5 regarding this condition occurred in January 2019. E.g., id. at 70.5 And, in contrast to the medical records from visits between the September 2018 vaccination and her February 2019, there is no record, during this lengthy period, when Petitioner complained of shoulder issues or sought treatment specific to such problems. See id. at 22-222. Petitioner did not seek treatment for left shoulder pain until August 4, 2020, when she returned to PA Latimer, reporting “chronic recurrent left shoulder and upper arm pain without specific preceding injury.” Exhibit 4 at 12. At this visit, Petitioner rated her pain as four out of ten, but ten out of ten at worst. Id. Upon examination, Petitioner exhibited full strength with no pain, but mildly limited range of motion. Id. at 13. PA Latimer diagnosed her with impingement of left shoulder, adhesive capsulitis, and osteoarthritis and administered a steroid injection. Id. In addition to these medical records, Petitioner submitted affidavits from herself (Exhibit 1) and her daughter (Exhibit 2), both executed on September 25, 2022. In her affidavit, Petitioner asserted that she felt pain “[r]ight before the needle was removed.” Exhibit 1 at 1. She also described her treatment from September 2018 through February 11, 2019, but failed to address the 18-month gap between February 2019 and August 2020. Similarly, in her affidavit, Petitioner’s daughter described Petitioner’s left shoulder complaints from only September through November of 2018. Exhibit 2. III. Analysis – Reasonable Basis The evidence provides some support for Petitioner’s claim that she suffered left shoulder pain potentially related to the flu vaccine she received. After complaining of her left shoulder pain only three days post-vaccination, she steadfastly pursued treatment through the end of December 2019, for approximately three months. Table onset seemes to be supported by this record, if nothing else. However, that same record establishes that Petitioner experienced significant relief by late November 2018 – thus within only two months of vaccination. Following a steroid injection and PT sessions in November 2018, her pain had decreased significantly. It remained at this mild level through the remainder of PT attended in December 2018. Although she continued taking Meloxicam, Petitioner’s pain remained at this mild level during a PCP visit in January 2019, and an orthopedic appointment on February 11, 2019, less than five months post-vaccination. Petitioner was administered a second steroid injection at the orthopedic appointment, and thereafter did not return for treatment or mention continuing left 5 This medical record also contains references to osteoarthritis in Petitioner’s right and left knees. Exhibit 3 at 70. 6 shoulder symptoms for almost 18 months, despite seeking medical care for unrelated conditions during this time. Thus, the record strongly supports the proposition that Petitioner’s injury had resolved – and within the Act’s six-month period for establishing severity, rather than extending beyond before resolving. Although Petitioner returned for treatment of left shoulder pain in August 2020, there is no evidence to link these later symptoms to the flu vaccine she received and any vaccine-related symptoms that she may have suffered for five months thereafter. And significantly, Petitioner has failed to provide an explanation for this considerable gap in treatment. Given the above, I cannot conclude that the record preponderantly establishes Petitioner’s injury persisted for the six months required by the Act. Such a lengthy treatment gap is too large to ignore given the facts, such as the improvement Petitioner reported as early as late November 2018. This lack of supporting evidence, especially of sequelae lasting more than six months post-vaccination, means the claim was untenable from the outset. And this is not a case in which the development of a fact, out of ambiguous records, later revealed that a claim that initially appeared viable in fact was not. Conclusion The Vaccine Act permits an award of reasonable attorneys’ fees and costs even to an unsuccessful litigant as long as the litigant establishes the Petition was brought in good faith and there was a reasonable basis for the claim for which the Petition was brought. Section 15(e)(1). But Petitioner has failed to provide evidence establishing there was a reasonable basis for filing her claim. Petitioner’s motion for attorney’s fees and costs is therefore DENIED. The Clerk of the Court is directed to enter judgment in accordance with this Decision.6 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 6 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. 7