VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00060
Package ID: USCOURTS-cofc-1_21-vv-00060
Petitioner: Perry Walters
Filed: 2021-01-05
Decided: 2025-08-26
Vaccine: influenza
Vaccination date: 2019-10-03
Condition: right shoulder injury related to vaccine administration (SIRVA)
Outcome: denied
Award amount USD: 

AI-assisted case summary:
On January 5, 2021, Perry Walters filed a petition alleging that an influenza vaccination administered at Walgreens on October 3, 2019 caused a right shoulder injury related to vaccine administration. He was 54 years old and worked as an HVAC technician.

Respondent opposed entitlement on two grounds: the certified Walgreens Vaccine Administration Record showed the vaccine was administered in the left arm, and the medical records did not show onset within the 48-hour Table window. Mr. Walters later produced an uncertified school immunization notification form marking the right deltoid, along with affidavits from himself, his wife, his supervisor, and a coworker stating that he complained of right shoulder pain shortly after vaccination.

Chief Special Master Brian H. Corcoran found the certified Walgreens record more reliable than the later school form, which had been created at Mr. Walters's request after he had researched SIRVA and did not reflect the pharmacist's independent recollection. He also found the contemporaneous medical records more persuasive than the affidavits on onset. In January, March, and April 2020 visits, Mr. Walters reported pain beginning in December 2019, and Dr. Fehsenfeld's notes suggested that he had been able to shoot rifles and ride an ATV before noticing right shoulder pain later in December.

On August 26, 2025, the Special Master denied compensation. Mr. Walters failed to prove by preponderant evidence that the flu vaccine was administered in the right arm or that shoulder pain began within 48 hours, and he had not pleaded a cognizable causation-in-fact claim.

Theory of causation field:
Influenza vaccine on October 3, 2019, age 54, alleged right SIRVA. DENIED. Respondent disputed both situs and onset. Certified Walgreens vaccine administration record showed left arm; later uncertified school immunization form said right deltoid but was created at petitioner's request after he suspected SIRVA. Medical records from Dr. Doan Khac Nguyen, Dr. Drew Fehsenfeld, and Dr. Chiriboga placed onset in December 2019, not within 48 hours, despite affidavits from petitioner, wife, coworker, and supervisor. Chief Special Master Corcoran gave greater weight to the contemporaneous vaccine and medical records and found no cognizable off-Table claim. Decision August 26, 2025. Attorney: Johnathan Svitak, Shannon Law Group.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_21-vv-00060-0
Date issued/filed: 2025-09-25
Pages: 13
Docket text: PUBLIC DECISION (Originally filed: 08/26/2025) regarding 37 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
--------------------------------------------------------------------------------
Case 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-60V
PERRY WALTERS, Chief Special Master Corcoran
Petitioner,
v. Filed: August 26, 2025
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Johnathan Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner.
Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for
Respondent.
ENTITLEMENT DECISION1
On January 5, 2021, Perry Walters 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 following his receipt of an influenza (“flu”) vaccine
on October 3, 2019, he suffered a right shoulder injury related to vaccine administration
(“SIRVA”). Petition (ECF No. 1) at 1. The case was assigned to the Special Processing
Unit (“SPU”) of the Office of Special Masters.
For the foregoing reasons, I determine that Petitioner is not entitled to
compensation for a SIRVA Vaccine Injury Table (“Table”) claim. Petitioner has also not
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 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 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 2 of 13
plead or otherwise stated a cognizable causation-in-fact claim. Respondent’s motion to
dismiss the Petition is therefore granted.
I. Relevant Procedural History
On March 7, 2022, the case was assigned to the SPU. ECF No. 16. On June 21,
2023, an initial status conference was held. Petitioner then filed additional evidence and
medical records. Respondent represented that he intended to defend this case and filed
a Rule 4(c) Report on August 31, 2023. ECF No. 22 (Rule 4(c) Report). Respondent also
filed a separate motion to dismiss, referencing the Rule 4(c) Report, on August 31, 2023.
ECF No. 23.
In the Rule 4(c) Report, Respondent opposed the Table SIRVA claim on two
grounds. First, Respondent argued that Petitioner had failed to establish that he received
the October 3, 2019 vaccination in his right arm, because the certified pharmacy record
indicated administration in the left arm. Rule 4(c) Report at 8. Second, Respondent
argued that Petitioner could not establish onset of his right shoulder pain within 48 hours
of vaccination, because he waited nearly four months to seek treatment and then
informed his treaters that his symptoms began in December 2019. Id. at 9-11.
On September 20, 2023, I ordered the parties to brief these issues. EFC No. 25.
On November 20, 2023, Petitioner filed motion for a ruling on the record. ECF No. 29
(Pet’r Mot.). Petitioner filed additional medical records and a supplemental affidavit. ECF
No. 28. On January 9, 2024, Respondent filed a combined reply in support of his motion
to dismiss and response to Petitioner’s motion for a ruling on the record. ECF No. 32
(Resp’t Opp’n). On January 23, 204, Petitioner filed a reply in support of his motion for a
ruling on the record. ECF No. 33 (Pet’r Reply). This matter is ripe for adjudication.
II. Relevant Evidence
I have reviewed all of the evidence filed to date. I will only summarize or discuss
evidence that directly pertains to the determinations herein, as informed by the parties’
respective citations to the record and their arguments.
A. Petitioner’s Vaccination and Subsequent Treatment
Petitioner was 54 years old at the time of vaccination and employed as an HVAC
technician. Ex. 1 at 1. In the months prior to his vaccination, Petitioner established care
at Copperfield Family Medicine and was treated for hypertension, but otherwise did not
have any ongoing medical complaints. See Ex. 3 at 6-9, 11-12. Petitioner noted that he
had not had a physical exam since early 2018. Id. at 6.
2

Case 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 3 of 13
On October 3, 2019, Petitioner received a flu vaccine at a Walgreens pharmacy.
Petitioner filled out and signed a Vaccine Administration Record (“VAR”) and informed
consent form. Ex. 11 at 4-5. The Walgreens pharmacist filled out the VAR as follows:
Id. at 5. This document was produced and certified by a Walgreens custodian of records.
Id. at 2.
However, Petitioner also filed an undated, uncertified “Immunization Services
School Immunization Notification Form” (“School Immunization Form”). Ex. 9 at 1. This
document appears to have been filled out and signed by a different Walgreens pharmacist
with Petitioner’s name, birthdate, and product information about the October 3, 2019
vaccination. See id. In contrast to the VAR, the person who filled out this form checked a
box indicating that Petitioner received the flu vaccine in his right deltoid. Id.
After vaccination, Petitioner did not obtain any further medical treatment until
January 24, 2020, when he saw orthopedist Dr. Doan Khac Nguyen for right shoulder
pain and decreased range of motion. Ex. 4 at 8. In the notes from this exam, Dr. Nguyen
wrote, “55 y/o male with [past medical history] of [hypertension] and [h]yperlipidemia. His
work involved a lot of over head lifting, carrying tools on his shoulder. Pain since
12/22/2019. No obvious trauma. Plan Physical Therapy and [non-steroid anti-
inflammatory drug].”3 Id. (emphasis added). Petitioner also answered “don’t know” to an
intake form question as to what caused his pain or injury and “12/22/2019” to the question
of when his pain started. Id. at 10. Dr. Nguyen took an x-ray, which was unremarkable,
and diagnosed Petitioner with adhesive capsulitis, bursitis, and impingement syndrome
of the right shoulder. Id. at 8.
Petitioner returned to Dr. Nguyen on February 24, 2020 for a follow-up
appointment. Id. at 6. Petitioner reported some improvement in his right shoulder, but still
was experiencing pain at night and with motion. Id. Dr. Nguyen administered a steroid
injection and recommended that Petitioner perform home exercises. Id.
On March 23, 2020, Petitioner had another appointment with Dr. Nguyen. Id. at 4.
Dr. Nguyen again noted that Petitioner had “persistent pain since 12/22/2019” and that
3 It does not appear that Petitioner ever pursued physical therapy.
3

Case 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 4 of 13
his work involved a lot of overhead lifting and carrying tools on his shoulder. Id.
Petitioner’s shoulder had improved, but he still had pain, especially when reaching back.
Id. Dr. Nguyen wrote that they would continue with conservative treatment with a follow
up in six months or as needed. Id.
On April 17, 2020, Petitioner was examined by an orthopedist at a different
practice, Dr. Drew Fehsenfeld. Ex. 5 at 14. Dr. Fehsenfeld recorded Petitioner’s chief
complaint as pain in his right shoulder and specified that Petitioner “was injured on
12/23/2019.” Id. Petitioner reported that “he began having shoulder pain and restricted
range of motion in December 2019.” Id. at 15. Dr. Fehsenfeld also wrote that the duration
of Petitioner’s symptoms was “4 months.” Id. at 14. Dr. Fehsenfeld found Petitioner’s
symptoms to be consistent with adhesive capsulitis. Id. at 16.
At this appointment, Dr. Fehsenfeld took x-rays, which did not reveal any
abnormality, and suggested that Petitioner try a home stretching program. Id. Dr.
Fehsenfeld also believed that Petitioner could benefit from physical therapy if he did not
improve over the next few weeks. Id. Petitioner was to return in three weeks for a follow-
up, but it does not appear that he saw Dr. Fehsenfeld again.4 See id.
Included in this set of records from Dr. Fehsenfeld’s office is a single page of
handwritten notes in diary format. See id. at 11. In particular, the notes stated, “12-17-19
– shot rifles – rode ATV – no pain” and “12-23-19 – noticed rt shoulder hurts when raised.”
Id. Other entries on this page described Petitioner’s previous appointments with Dr.
Nguyen. Id. It is unclear whether Petitioner or Dr. Fehsenfeld created these notes.
On April 29, 2020, Petitioner saw chiropractor Dr. David Chiriboga. Ex. 13 at 4.
Similar to what he told his other treaters, Petitioner reported that he “started feeling right
shoulder pain approximately four months ago.” Id. Dr. Chiriboga recommended that
Petitioner return two times per week for the next four weeks, id. at 5, but he did not seek
further chiropractic treatment.
The final medical record filed by Petitioner is from five months after his
appointment with Dr. Chiriboga, when Petitioner returned to Dr. Nguyen on September
16, 2020. Ex. 4 at 2. Petitioner stated that his shoulder pain was 80% better and he did
not feel that he needed to come back. Id. At this appointment, for the first time, Petitioner
made a different statement about onset. Dr. Nguyen wrote that Petitioner “attributed rt
shoulder pain and stiffness due to flu shot on 10/3/2019.” Id. Petitioner did not seek any
further medical care for his right shoulder.
4 On April 21, 2020, a colleague of Dr. Fehsenfeld prescribed Petitioner oral steroids, although Petitioner
did not return for another appointment. See Ex. 5 at 13.
4

Case 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 5 of 13
B. Affidavit Evidence
Petitioner filed his first affidavit with the Petition. Petitioner stated in it that he
received the October 3, 2019 flu vaccine in his right arm, and that he began to experience
pain and restrictions in his range of motion the next day. Ex. 1 at 2. Petitioner recounted
that he was at work on October 4, 2019 and that the pain was so severe that he asked
his supervisor if he could be excused for the rest of the day. Id. Petitioner asserted that
he needed to take vacation or sick leave due to the “disabling” pain in his right shoulder
on October 11, 2019, November 1-5, 2019, December 9, 2019, December 20, 2019,
February 21, 2020, March 20, 2020, April 2, 2020, April 16, 2020, and also on various
other unspecified dates between April 29, 2020 and September 2020. Id. at 3-4.
Regarding his first appointment with Dr. Nguyen, Petitioner explained that he “could not
remember when [his] right shoulder pain first began,” but told Dr. Nguyen “that it increased
in severity in December of 2019.” Id. at 2.
Petitioner’s supervisor, Justin Lonzo, provided an affidavit dated December 21,
2020. Ex. 6 at 1. Mr. Lonzo stated that on October 4, 2019, Petitioner reported right
shoulder pain “that began after he received an influenza vaccine the day before” and
requested to leave early. Id. at 2. Mr. Lonzo also stated that, “in the weeks following
October 3, 2019,” he observed that Petitioner had less strength to pick up heavy items
and less stamina due to his right shoulder issues, which prevented Petitioner from
performing all of his job duties. Id.
Petitioner also filed an affidavit from Estella Cruz, who works with him as a
dispatcher, dated December 21, 2020. Ex. 7 at 1. Ms. Cruz stated that on October 4,
2019, Petitioner reported that he was having right shoulder pain that was impacting his
job duties and that this had started ever since he had received the flu vaccine the day
before. Id. at 2. Ms. Cruz further stated that Petitioner requested a half-day of work on
October 4, 2019 and she “entered a note into our electronic work call records to reflect
that Petitioner had left work due to pain in his shoulder.” Id. Ms. Cruz also observed, over
the next few weeks, that Petitioner had difficulties performing his regular work. Id.
On March 2, 2022, Petitioner filed an affidavit from his wife, Camille Walters. Ex.
10 at 1. Ms. Walters stated that she went with Petitioner to Walgreens on October 3, 2019
and recalled observing that Petitioner received the vaccine in his right arm, whereas she
received it in her left arm. Ms. Walters also observed that Petitioner came home early on
October 4, 2019 and that he told her that it was due to pain in his shoulder. Id. Ms. Walters
explained that after the vaccination, she saw Petitioner in a “great amount of pain that
worsened each day,” but he did not go to the doctor until the pain became “unbearable.”
5

Case 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 6 of 13
Id. at 2. Ms. Walters concluded that she believed that Petitioner would have shoulder
issues “for the rest of his life.” Id.
On July 21, 2023, Petitioner filed a digital photograph of a hard copy document
entitled “2019 Employee Attendance Calendar.” Ex. 12 at 1. The header of the document
is a printed list of “absence codes,” a list of reasons for absences, and space for
information about the employee. See id. The header is filled out with Petitioner’s name
and employee number in pencil. See id. The body of the document contains a small
calendar for each month of 2019. See id. There are certain days marked in pencil,
presumably to indicate days that Petitioner was absent from work, using the “absence
codes,” such as “V” for vacation. See id. An unknown person highlighted October 4, 2019
in yellow. See id. The date of October 4, 2019 has the handwritten notation “HDS” and
the words “*HDS Half Day Sick” have been handwritten at the bottom of the page. See
id. There are no dates indicating for when any of the information was filled in.
After Respondent filed his August 31, 2023 Rule 4(c) Report, Petitioner filed a
second affidavit. Ex. 14 at 1. In it, Petitioner provided more details about the
administration of the flu vaccine on October 3, 2019. Petitioner stated that he is right-
hand dominant, and was told to receive the vaccine in his dominant arm to reduce
soreness. Id. Petitioner also explained that he has a tattoo with a heart on his right
shoulder and that he remembered the pharmacist positioning the vaccine over the tattoo
and discussing that she would inject it into the heart design. Id.
As in his first affidavit, Petitioner stated that after October 4, 2019, his shoulder
continued to be intermittently sore, but it worsened significantly in December 2019. Id. at
2. According to Petitioner, when he first saw Dr. Nguyen, he was not aware of the
possibility of a SIRVA and thus did not think to relate to his issue to the flu vaccine when
asked how and when his symptoms began. Id. at 2-3. Petitioner provided the same
explanation for why he also told Dr. Fehsenfeld that his pain began in December 2019.
Id. at 3. Further, Petitioner stated that in “Fall 2020,” he began to investigate whether the
vaccines could have caused a shoulder injury, leading to his discovery of SIRVA and his
attribution of his symptoms to the vaccine at the September 16, 2020 appointment with
Dr. Nguyen. Id.
In his second affidavit, Petitioner explained the provenance of Exhibit 9, the
Walgreens School Immunization Form. Id. at 4. Petitioner returned to the same
Walgreens and requested a vaccine record from the pharmacist. Id. Apparently, the
6

Case 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 7 of 13
pharmacist could not produce the original record, but instead filled out a new form for
Petitioner with the “corrected site of vaccination.”5 Id.
III. Petitioner’s Table SIRVA Claim Warrants Dismissal
A. Legal Standard for SIRVAs
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 Section 11(c)(1).
A petitioner may prevail on his claim if he has “sustained, or endured the significant
aggravation of any illness, disability, injury, or condition” set forth in the Table. Section
11(c)(1)(C)(i). If a petitioner establishes a Table injury, causation is presumed.
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-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Id. at *19. The United States Court of Federal Claims has
recognized that “medical records may be incomplete or inaccurate.” Camery v. Sec’y of
Health & Human Servs., 42 Fed. Cl. 381, 391 (1998). And the Federal Circuit has
“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 & Human Servs., 997
F.3d 1378, 1383 (Fed. Cir. 2021).
Medical records may be outweighed by testimony that is given later in time that is
“consistent, clear, cogent, and compelling.” Camery, 42 Fed. Cl. at 391 (citing Blutstein
v. Sec’y of Health & Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec.
5 Petitioner did not state when he obtained the School Immunization Form. However, he did state that he
provided this form to his attorney. See Ex. 14 at 4.
7

Case 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 8 of 13
Mstr. June 30, 1998)). The credibility of the individual offering such 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).
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
v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1335
(Fed. Cir. 2014).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a). A
SIRVA is compensable if it manifests within 48 hours of the administration of a flu vaccine.
42 C.F. R. § 100.3(a)(XIV)(B). The criteria establishing a SIRVA under the accompanying
QAI are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
8

Case 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 9 of 13
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g., NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
B. Petitioner Has Not Established Situs With Preponderant Evidence
Petitioner filed two pharmacy records, the VAR and School Immunization Form,
that identify different sites of administration. In opposing entitlement, Respondent argues
that the VAR is inherently more reliable and trustworthy than the School Immunization
Form. Rule 4(c) Report at 8; Resp’t Opp’n at 3. In response, Petitioner champions the
School Immunization Form and presents it as a corrected vaccination record. Pet’r Mot.
at 6-10; Pet’r Reply at 3.
Respondent has the far better argument. As Respondent points out, the VAR was
created contemporaneously with vaccine administration, required the pharmacist to
manually circle a specific notation for the left arm, and was signed by Petitioner. Rule 4(c)
Report at 8. Unlike the School Immunization Form, the VAR was also certified by
Walgreens as a true and correct business record. Ex. 11 at 2. These characteristics
warrant significant weight and provide substantial and reliable evidence that the VAR
correctly stated the site of administration as Petitioner’s left arm. See Schmidt v. Sec’y of
Health & Hum. Servs., No. 17-1530V, 2021 WL 5226494, at *8 (Fed. Cl. Spec. Mstr. Oct
7, 2021); Marion v. Sec'y of Health & Hum. Servs., No. 19-0495V, 2020 WL 7054414, at
*8 (Fed. Cl. Spec. Mstr. Oct. 27, 2020).
By contrast, I give the School Immunization Form little weight. This document is
undated, uncertified, and was not (contrary to Petitioner’s characterization) created as a
correction to the VAR. Rather, Petitioner has acknowledged that the School Immunization
Form was produced at his request -- well after vaccination and after he had already come
to the conclusion that he had suffered from a SIRVA. See Ex. 14 at 4. There is no
evidence that the pharmacist on duty that day who completed this form had any
independent, personal knowledge that Petitioner had actually received the vaccine in his
right arm. Indeed, even the purpose of this document to list immunizations for
schoolchildren demonstrates that it cannot be considered as a substitute for the original
VAR. Considering the entirety of the record and the problems with the School
Immunization Form, I do not find that the original VAR is ambiguous, incomplete, or
unreliable. See Pet’r Mot. at 6, 9.
Further, I do not agree that this represents a case in which the VAR is inconsistent
with Petitioner’s medical records. See id. at 7. Petitioner relies on a list of cases in which
9

Case 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 10 of 13
other Vaccine Act claimants provided sufficient evidence to rebut a vaccine record that
indicated administration in the “wrong arm.”6 Id. at 8. But these cases involved petitioners
who reported to their treaters, generally within a short time period, that they were suffering
from a distinct shoulder pain that began immediately after vaccination in that arm. The
petitioners in these cases also provided copious information about situs for the purpose
of obtaining medical care, and did not only point to affidavit statements.7
Here, Petitioner’s medical records do not cast doubt on the VAR’s accuracy, and
do not create any ambiguity as to situs. Petitioner did not initially reference the flu vaccine
at all when complaining of shoulder pain. See Ex. 4 at 4, 6, 8; Ex. 5 at 14; Ex. 13 at 4.
Although Petitioner did later attribute his right shoulder pain to the flu vaccine at the
September 16, 2020 appointment (see Ex. 4 at 2), his affidavit makes clear that by this
point he had already researched SIRVA and sought to document this topic with Dr.
Nguyen. See Ex. 14 at 3. Petitioner thus did consistently complain of pain in his right
shoulder, but I cannot infer post-hoc that Petitioner must have received the vaccine on
that side. Based on Petitioner’s medical records, the instant case does not present a
similar situation in which the totality of the evidence outweighs a single outlier, or
potentially unreliable, vaccine record.
Petitioner also argues that his affidavit evidence should be considered more
persuasive than the written records because it is “consistent, clear, cogent, and
compelling.” Pet’r Mot. at 6 (citing Camery, 42 Fed. Cl. at 391); Pet’r Reply at 2. The
affidavits are clear and consistent in that the affiants uniformly recall Petitioner
complaining of right shoulder pain on October 4, 2019. But the statements of Mr. Lonzo
and Ms. Cruz are less compelling because they only repeat information from Petitioner
about the cause of his pain. Ms. Walters’ affidavit is better in that respect, but her
6 Petitioner cites the following cases: Keyes v. Sec’y of Health & Hum. Servs., No. 15-0845V, 2016 WL
2606645 (Fed. Cl. Spec. Mstr. Jan. 27, 2016); Skinner-Smith v. Sec’y of Health & Hum. Servs., No. 14-
1212V, 2016 WL 3180635 (Fed. Cl. Spec. Mstr. Apr. 27, 2016); Garrett v. Sec’y of Health & Hum. Servs.,
No. 17-0815V (Fed. Cl. Spec. Mstr. Mar. 15, 2018); Rafferty v. Sec’y of Health & Hum. Servs., No. l 7-
1906V, 2018 WL 6520947 (Fed. Cl. Spec. Mstr. Oct. 11, 2018); Goring v. Sec’y of Health & Hum. Servs.,
No. 16-1458V, 2018 WL 6539219 (Fed. Cl. Spec. Mstr. Oct. 31, 2018); Capra v. Sec’y of Health & Hum.
Servs., No. 18-0129V, 2019 WL 3717951 (Fed. Cl. Spec. Mstr. Apr. 26, 2019); Tellez-Garcia v. Sec’y of
Health & Hum. Servs., No. 17-816V, 2019 WL 5704796 (Fed. Cl. Spec. Mstr. Oct. 9, 2019); Kosma v. Sec’y
of Health & Hum. Servs., No. 21-0538V, 2023 WL 4843301 (Fed. Cl. Spec. Mstr. June 28, 2023); Axelrod
v. Sec’y of Health & Hum. Servs., No. 21-0980V, ECF No. 42.
7 Tellez-Garcia is different, in that the petitioner waited seven months before obtaining treatment for her
shoulder pain and relied in much larger part on affidavits. See Tellez-Garcia, 2019 WL 5704796, at *2.
However, a key piece of evidence in that case, absent here, was the live testimony of the vaccine
administrator, who admitted that she could have erred in documenting situs. See id. at *3. Further, in two
cases, there was the added inconsistency of the fact that the vaccine record was edited by unknown parties
or pre-populated before the vaccine was even administered. See Rafferty, 2018 WL 6520947, at *6; Kosma,
2023 WL 4843301, at *5.
10

Case 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 11 of 13
supposed recollection of having seen Petitioner receive the vaccine in his right arm was
still made nearly two and a half years later.
Petitioner’s description of how the pharmacist injected the vaccine into his right
arm tattoo is quite vivid. But I afford this statement less weight as compared to the
contemporaneous VAR because it was made for the purpose of litigation after
Respondent’s Rule 4(c) Report had been filed. Nonetheless, even if I were to find that
general recollections of Petitioner and his wife constitute preponderance evidence that
Petitioner received the vaccine in his right arm, this claim would still fail for failure to prove
onset within 48 hours.
C. Petitioner Has Not Establish Onset Within 48 Hours By Preponderant
Evidence
A Table SIRVA claim requires proof of onset of shoulder pain within 48 hours of
vaccination. 42 C.F.R. §§ 100.3(a)(XIV)(B), (c)(10)(ii). Respondent emphasizes that
Petitioner delayed nearly four months before seeking treatment, and then repeatedly
reported that his pain began on a specific date in December 2019. Rule 4(c) Report at 2,
9-10; Resp’t Opp’n at 3-5. To counter this argument, Petitioner asserts that his earliest
medical records “do not tell the complete story.” Pet’r Mot. at 10-15; Pet’r Reply at 3-5.
Petitioner instead points to the affidavits describing pain beginning on October 4, 2019
and his September 16, 2020 appointment with Dr. Nguyen. See Pet’r Mot. at 10-15.
Petitioner is correct that to establish onset, he is not required to produce a
contemporaneous medical record reporting that his pain began during the 48-hour period
post-vaccination. See Pet’r Mot. at 13 (citing Miller v. Sec’y of Heath & Hum. Servs., No.
20-0959V, 2022 WL 2187589, at *4 (Fed. Cl. Spec. Mstr. April 29, 2022)). Petitioners also
“often employ vague temporal language, based on their lack of awareness of the
importance for Program purposes of specificity.” Miller, 2022 WL 2187589, at *4.
Similarly, it is common for a SIRVA petitioner to think that the injury will be transient and
delay seeking treatment. See id. Treatment delay by itself, or lack of specificity in
pinpointing onset, does not warrant dismissal.
However, Petitioner’s medical records are not merely imprecise, vague, or silent
as to onset. Petitioner did not make any statement that would suggest that his pain began
shortly after vaccination. Instead, Petitioner told Drs. Nguyen, Fehsenfeld, and Chiriboga
that he had been having shoulder pain and restricted range of motion since a specific
date in December 2019, or (as of the end of April 2020) that he had started feeling pain
four months earlier. Ex. 4 at 4; 6; Ex. 5 at 14-15; Ex. 13 at 4. Further, the notes included
in Dr. Fehsenfeld’s records indicate that Petitioner did not experience pain on December
7, 2019, when he shot rifles and rode an ATV, but after that time “noticed” his right
11

Case 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 12 of 13
shoulder hurt when raised on December 23, 2019. Ex. 5 at 11. All of these statements
indisputably place onset well outside of the 48-hour period.
Contrary to Petitioner’s contentions, he never informed any treater that his pain
was present earlier, but then worsened or became more severe in December 2019. See
Pet’r Mot. at 10-15. The medical records do not corroborate Petitioner’s testimony. See
Pet’r Reply at 4. Even when Petitioner returned to Dr. Nguyen on September 16, 2020,
he “attributed” his right shoulder pain and stiffness to the flu vaccine, but apparently did
not provide any details as to timing. Ex. 4 at 2. Petitioner’s medical records lack any
reference to pain beginning immediately after vaccination.
In order to overcome these statements fixing onset in December 2019, Petitioner
argues that until he learned about SIRVA, he was not able to report any “inciting event”
or connect his symptoms to the vaccination. See id. at 10-11. Petitioner analogizes to
Smallwood, in which the petitioner waited 54 days to seek medical care because he had
discounted his injury until he learned about SIRVA through an internet search. Id. at 12
(discussing Smallwood v. Sec’y of Health & Hum. Servs., No. 18-291, 2020 WL 2954958,
at *10 (Fed. Cl. Spec. Mstr. April 29, 2020)). However, Petitioner does not use his lack of
knowledge about SIRVA to only explain a delay in treatment. I do not find it supportive of
Petitioner’s claim that he further developed his description of onset after he had the
specific condition of SIRVA in mind. See Vashro v. Sec'y of Health & Hum. Servs., No.
20-1849V, 2023 WL 6643108, at *3 (Fed. Cl. Spec. Mstr. Sept. 5, 2023)).
Finally, I do not find the affidavit evidence to be sufficiently compelling to outweigh
the medical records. The affidavits are not contemporaneous with treatment events, and
they are largely formulaic as to what Petitioner told each affiant about the onset of his
pain. Petitioner places great importance on the need to leave work early the day after
vaccination due to shoulder pain, but the 2019 Employee Attendance Calendar adds
additional inconsistencies. It is entirely unclear who created this document and added the
“*HDS Half Day Sick” notation on October 4, 2019.8 Ultimately, I give greater weight to
Petitioner’s unbiased initial statements to obtain medical care that his pain began without
a known cause in December 2019.
8 Additionally, as Respondent points out, Ms. Cruz stated that she entered a note into the “electronic work
call records to reflect that Petitioner had left work due to pain in his shoulder,” Ex. 7 at 2, yet Petitioner
instead presents a handwritten calendar. See Rule 4(c) Report at 5. Furthermore, Petitioner asserts that
he took vacation or sick leave on December 9, 2019 and December 20, 2019 due to his shoulder pain, see
Ex. 1 at 2, but these dates are not marked on the 2019 Employee Attendance Calendar.
12

Case 1:21-vv-00060-UNJ Document 40 Filed 09/25/25 Page 13 of 13
Conclusion
Petitioner has presented insufficient proof to establish an entitlement to
compensation for a Table SIRVA, for failure to establish Table onset and/or administration
situs. As a result, he cannot obtain compensation for the Table SIRVA injury. Moreover,
Petitioner has not alleged a causation-in-fact claim based on a finding that his onset
occurred no sooner than two months post-vaccination – and I do not find on this record
that such a claim would be tenable. And there remains the problem of vaccine situs as
well, and why a vaccination delivered in one arm would cause a neuropathic injury in the
other, two or more months later. Thus, transfer of the case for resolution of a non-Table
claim would prove futile.
Accordingly, Respondent’s motion to dismiss (ECF No. 23) is GRANTED.
Petitioner’s motion for a decision on the record (ECF No. 30) is DENIED. In the absence
of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk
shall enter judgment in accordance with this Decision.9
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
13