VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00344
Package ID: USCOURTS-cofc-1_21-vv-00344
Petitioner: Jessica Ramirez
Filed: 2021-01-08
Decided: 2024-09-25
Vaccine: influenza
Vaccination date: 2020-09-01
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Jessica Ramirez, born in 1942, filed a petition on January 8, 2021, alleging a shoulder injury related to vaccine administration (SIRVA) following an influenza vaccine received on September 1, 2020. Petitioner reported right shoulder pain starting 19 days after the vaccination, which she attributed to the flu shot. Medical records from September 20, 2020, noted right shoulder pain exacerbated by activity, rated 5/10, disrupting sleep, and described as "most likely some nerve pain after vaccination." Subsequent records from October 8, 2020, indicated the pain had increased to 8/10, particularly with raising the arm, and was assessed as a soft tissue injury. An X-ray on December 23, 2020, found "significant subacromial impingement with external rotation and abduction." An orthopedist, Dr. John Klein, noted persistent pain since the flu shot, positive weakness with resisted external rotation, and a tentative assessment of a rotator cuff tendon tear, but could not perform an MRI due to a pacemaker. Over the following eight months, Petitioner attended numerous medical appointments for chronic heart issues, with no documented treatment for her shoulder. During this period, Petitioner received two doses of the COVID-19 vaccine in the same right arm in May 2021. On September 10, 2021, Petitioner presented for follow-up on right shoulder pain, with the PCP noting pain on abduction over 90 degrees and assessing "right shoulder pain unspecified chronicity." A CT scan revealed mild glenohumeral and acromioclavicular osteoarthritis and moderate sternoclavicular osteoarthritis. Petitioner was offered a referral to an orthopedic surgeon, Dr. Joel Thompson, in October 2021, but never presented for an appointment. Petitioner's adult children provided affidavits recalling her shoulder pain throughout 2021, with one daughter recalling a specific phone call on March 16, 2021, and witnessing the injury in late March 2021. Petitioner stated she deferred treatment due to fear of contracting COVID-19. The respondent argued that the claim did not meet the Vaccine Act's severity requirement, which mandates that the injury's residual effects persist for at least six months post-vaccination. Chief Special Master Brian H. Corcoran agreed, finding that the evidence did not preponderantly establish that Ms. Ramirez suffered from the shoulder injury for the required six-month period (until March 1, 2021). The Special Master noted the injury appeared mild, with a significant eight-month gap in treatment for the shoulder, during which Petitioner sought care for other conditions and received COVID-19 vaccines in the same arm. The Special Master concluded that this treatment gap, along with the administration of COVID-19 vaccines in the affected arm, suggested the injury had likely resolved or was manageable conservatively, and represented a potential alternative cause for any subsequent issues. Because Petitioner failed to establish the severity requirement, her claim was dismissed on September 25, 2024, with no award granted. Petitioner was represented by Leah VaSahnja Durant, and Respondent was represented by Parisa Tabassian.

Theory of causation field:
Petitioner Jessica Ramirez, born in 1942, alleged a shoulder injury related to vaccine administration (SIRVA) following an influenza vaccine on September 1, 2020. The claim was dismissed by Chief Special Master Brian H. Corcoran on September 25, 2024, for failure to meet the Vaccine Act's severity requirement, which mandates residual effects lasting at least six months post-vaccination. Petitioner reported right shoulder pain starting 19 days post-vaccination, with medical records documenting pain, impingement, and osteoarthritis over the following year. However, the Special Master found a significant eight-month gap in treatment for the shoulder injury between approximately March 2021 and September 2021. During this gap, Petitioner received COVID-19 vaccines in the same right arm in May 2021. The Special Master concluded that the injury appeared mild, the treatment gap suggested resolution or conservative manageability, and the COVID-19 vaccines presented a potential alternative cause. Petitioner was represented by Leah VaSahnja Durant, and Respondent by Parisa Tabassian.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00344-0
Date issued/filed: 2024-09-25
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 08/16/2024) regarding 42 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
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Case 1:21-vv-00344-UNJ Document 44 Filed 09/25/24 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0344V
JESSICA RAMIREZ, Chief Special Master Corcoran
Petitioner,
v. Filed: August 16, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DISMISSING CASE1
On January 8, 2021, Jessica Ramirez filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (the
“Vaccine Program”). Petitioner alleges that she suffered a shoulder injury related to
vaccine administration (“SIRVA”) following her receipt of an influenza (“flu”) vaccine which
she received on September 1, 2020. Petition (ECF No. 1); see also Amended Petition
filed July 18, 2022 (ECF No. 20). Respondent argues that the claim cannot meet the
Vaccine Act’s “severity requirement,” see Section 11(c)(1)(D)(i). For the reasons stated
below, I deem the claim appropriately dismissed on that basis.
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 1:21-vv-00344-UNJ Document 44 Filed 09/25/24 Page 2 of 9
I. Procedural History
The claim was assigned to the “Special Processing Unit” (OSM’s adjudicatory
system for expedited resolution) (ECF No. 15). Respondent was opposed to any
exploration of settlement, however, and filed his Rule 4(c) Report, disputing satisfaction
of the severity requirement and requesting that Petitioner obtain certified and complete
records. Rule 4(c) Report filed July 10, 2023 (ECF No. 29). I ordered Petitioner to show
cause why the claim should not be dismissed on those bases. Show Cause Order filed
Oct. 3, 2023 (ECF No. 30).
Petitioner subsequently filed Exs. 10 – 17 (see ECF Nos. 33 – 38), and the parties
briefed the disputed issues. Petitioner’s Response to Order to Show Cause filed Feb. 5,
2024 (ECF No. 39) (hereinafter “Brief”); Respondent’s Response filed Feb. 15, 2024 (ECF
No. 40); Petitioner’s Reply filed Mar. 18, 2024 (ECF No. 41). The matter is now ripe for
adjudication.3
II. 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-
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.” Lowrie, 2005 WL 6117475, at *19.
3 It is noted that the Rule 4(c) Report and the parties’ briefing contain citations to Exhibits 4, 5, and 8 –
which are not certified as accurate and complete. This opinion instead utilizes citations to the certified
records from those providers, which have been filed as Ex. 12 (replacing Ex. 4) and Ex. 13 (replacing Exs.
5 and 8). See also Reply at n. 1.
2

Case 1:21-vv-00344-UNJ Document 44 Filed 09/25/24 Page 3 of 9
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Hum. Servs., 42 Fed. Cl.
381, 391 (1998). The Court later 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, 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. 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, 110 Fed. Cl. at 204 (citing § 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 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).
A potential petitioner must demonstrate that he or she “suffered the residual effects
or complications of such [vaccine-related] illness, disability, injury, or condition for more
than 6 months after the administration of the vaccine.” Section 11(c)(1)(D)(i)4; see also
Black v. Sec’y of Health & Human Servs., 33 Fed. Cl. 546, 550 (1995) (reasoning that the
“potential petitioner” must not only make a prima facie case, but clear a jurisdictional
threshold, by “submitting supporting documentation which reasonably demonstrates that
a special master has jurisdiction to hear the merits of the case”), aff’d, 93 F.3d 781 (Fed.
Cir. 1996) (internal citations omitted).
4 Section 11(c)(1)(D) presents two alternative grounds for eligibility to compensation if a petitioner does not
meet the six months threshold: (ii) death from the vaccine, and (iii) inpatient hospitalization and surgical
intervention. Neither alternative is alleged or implicated in this claim.
3

Case 1:21-vv-00344-UNJ Document 44 Filed 09/25/24 Page 4 of 9
Congress has stated that the severity requirement was designed “to limit the
availability of the compensation system to those individuals who are seriously injured from
taking a vaccine.” H.R. REP. 100-391(I), at 699 (1987), reprinted in 1987 U.S.C.C.A.N.
2313–1, 2313–373, cited in Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322,
1335 (Fed. Cir. 2011), cert. denied, 132 S.Ct. 1908 (2012); Wright v. Sec’y of Health &
Human Servs., 22 F.4th 999, 1002 (Fed. Cir. 2022).
III. Evidence
The medical records reflect that Petitioner was born in 1942. In summer 2018, she
reported right-sided neck, shoulder, and arm pain. Ex. 3 at 99, 177. A physical therapist
documented right shoulder cuff weakness and pain with elevation. Id. at 177. The
therapist assessed scoliosis, muscle imbalance, and a poor sleeping arrangement, for
which further PT was recommended. Id. at 177. However, Petitioner did not seek further
treatment for, or renew, this complaint. See generally Ex. 3. Petitioner also attended
regular medical appointments for chronic issues including heart failure, atrial fibrillation
(requiring a pacemaker), hypertension, and anemia. See, e.g., Ex. 3 at 121 – 25.5
Petitioner received the at-issue flu vaccine intramuscularly in her right deltoid at a
Walgreens pharmacy on September 1, 2020. Ex. 1 at 1 – 2.6 Petitioner was not
documented to have complained of right shoulder pain during subsequent primary care
encounters focused on other issues on September 2, and September 10, 2020. Ex. 3 at
67 – 74.
Nineteen days (19) days post-vaccination, on September 20, 2020, Petitioner
sought urgent care for a chief complaint of “right arm pain from flu shot on Sept 1.” Ex. 2
at 42. The pain was exacerbated by activity, movement, and palpation; rated 5/10; “sho[t]
down her arm”; and was disrupting her sleep. Id. at 43. Tylenol, heat, and rest had not
relieved the pain. Id. Physical examination of the musculoskeletal system found “normal
ROM, normal strength, proximal upper extremity: right shoulder – no tenderness, no
5 Of note, Ex. 3 at 121 – 25 is one example of a medical encounter with a specialist (here, with a cardiologist)
that is embedded within the primary care records, and a medical encounter did not listed in Petitioner’s
medical history. See PAR Questionnaire (ECF No. 13) at 1 (instructing Petitioner to list “All medical offices
and/or medical facilities where [she] ha[d] been seen during the three (3) years prior to vaccination [and]
All offices or facilities where [she] received treatment following the vaccination(s), even if unrelated to the
vaccine injury.”) (emphasis added).
6 Exhibit 1 is not certified as accurate and complete, as noted in Response at n. 1. On March 18, 2024,
Petitioner replied that she has submitted another request to Walgreens for the records at issue, which
Petitioner promised to file upon receipt. Reply at n. 1. Certified copies of those records have not been
received. But see Ex. 3 at 120 (Walgreens vaccine administration record, embedded within certified primary
care records).
4

Case 1:21-vv-00344-UNJ Document 44 Filed 09/25/24 Page 5 of 9
swelling, no erythema.” Id. at 45. A nurse practitioner proposed that Petitioner “most likely
has some nerve pain after vaccination,” and prescribed diclofenac topical gel, a Medrol
dosepak (oral steroids, to take for six days), and tramadol (12 tabs with no refills, “for
severe pain only”). Id. The NP also recommended Tylenol, ice, heat, gentle stretching –
and provided patient educational materials about musculoskeletal pain. Id.
On October 8, 2020, Petitioner’s primary care provider (“PCP”) recorded her
history of right shoulder pain since vaccination, which had been temporarily relieved by
the steroids but had subsequently increased in severity. Ex. 3 at 66. Petitioner reported
her current pain as 8/10, particularly associated with raising the arm. Id. The PCP
recorded that on exam, there was “no limited arm but has pain on deltoid when she moves
it.” Id. The PCP assessed a soft tissue injury, for which she prescribed gabapentin. Id. at
65.
On December 23, 2020, Petitioner secured orthopedist John Klein, M.D.’s referral
for an x-ray of her right shoulder, which found: “[s]ignificant subacromial impingement
with external rotation and abduction.” Ex. 12 at 5. The next day, Dr. Klein reviewed
Petitioner’s history of right shoulder pain had persisted since her flu shot in September
2020. Ex. 12 at 3 – 4. Dr. Klein’s exam found “diffuse pain [and] positive weakness with
resisted external rotation.” Id. at 3. He did not offer any assessment or treatment plan –
waiting to determine Petitioner’s “pacemaker profile,” which might contraindicate an MRI.
Id.
At a January 14, 2021 follow-up appointment, Dr. Klein made identical exam
findings, and his tentative assessment was a rotator cuff tendon tear. Ex. 12 at 6. Because
Petitioner had a pacemaker and could not undergo an MRI, Dr. Klein planned an
ultrasound of her shoulder, but it was never obtained. Id. 6 – 7. Dr. Klein also recorded
that Petitioner “[did] not want another injection.” Id. at 6. He did not offer any treatment
plan. Id. There are no further records from Dr. Klein.
Over the following eight months, Petitioner attended numerous, in-person medical
encounters focused on chronic issues – primarily relating to her heart. At a January 29,
2021, cardiology appointment, Petitioner reported not exercising as much due to recent
chest heaviness, palpitations, and shortness of breath. Ex. 13 at 408. At a February 25,
2021, cardiology follow-up, she reported “more” chest heaviness, plus shortness of breath
and headaches. Id. She apparently underwent an angiogram on March 16, 2021. Id.
At a March 24, 2021, cardiology follow-up, Petitioner “denie[d] any recurrent chest
pain but state[d] that she has no energy”; she apparently had made an appointment to
5

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see Peter Ott, M.D.,7 in mid-April. Ex. 13 at 408. The following day, the PCP saw Petitioner
for a visit diagnosis of atrial fibrillation, but the medical record only reflects updates to her
medication list, and lab work. Ex. 13 at 385 – 90. There is no recorded history, exam,
assessment, or plan – and no information relating to Petitioner’s shoulder.
The PCP records also reflect the intramuscular administration of COVID-19
vaccines in Petitioner’s right arm (the same arm as the alleged SIRVA) at a Walgreens
on May 3, and May 24, 2021. Ex. 13 at 276 – 77.
At a July 30, 2021, cardiology follow-up, Petitioner reported feeling poorly, not
sleeping well, and experiencing palpitations and dizziness. Ex. 13 at 408. She “had a
monitor placed for a week” and was scheduled to follow up with Dr. Ott in August Id.
Petitioner also underwent lab work at the primary care office on at least nine dates during
this intervening time period. Ex. 13 at 449 – 51 (billing summary); id. at 287 – 380
(corresponding medical records).
On September 10, 2021, Petitioner presented to her PCP for to “follow up” on right
shoulder pain. Ex. 13 at 271. The PCP recorded Petitioner’s history that she had been
experiencing ongoing right should pain “due to” her flu vaccine a year ago. Id. The PCP’s
exam found “right shoulder pain on abduction over 90.” Id. at 272. The assessment was
“right shoulder pain unspecified chronicity.” Id. at 274. A flu vaccine was administered in
Petitioner’s left arm. Id. at 276.
The PCP also ordered a CT scan, which lists a clinical indication of “chronic right
shoulder pain for one year.” Ex. 9 at 3. The scan revealed mild glenohumeral and
acromioclavicular osteoarthritis and moderate sternoclavicular osteoarthritis. Id.
At an October 28, 2021, annual exam, the PCP’s exam found right shoulder “pain
on abduction over 90 degrees,” and she offered a referral to an orthopedic surgeon, Joel
Thompson, M.D. Ex. 13 at 200, 204. However, Petitioner never presented to Dr.
Thompson, see Ex. 11, or received any other treatment for her shoulder.
I have also reviewed the submitted affidavits. Petitioner maintains that her right
shoulder pain from the flu vaccine continued throughout 2021. Ex. 6 at ¶¶ 5 – 8. She also
states that she deferred treatment for this injury for much of 2021 to reduce the risk that
she, and her husband (who is approximately twelve years older than her), would contract
COVID. Ex. 7 at ¶ 2.
7 Dr. Ott is identified elsewhere as the physician “managing” Petitioner’s pacemaker. Ex. 13 at 411. No
records from this provider have been filed.
6

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In December 2023, her three adult children recalled that Petitioner’s right shoulder
injury had persisted throughout 2021. Her son only recounts telephone calls, particularly
relating to the September 2020 onset of her injury – and thus his affidavit is less helpful
to resolving severity. See generally Ex. 16.
Her daughters recall a specific telephone call with Petitioner about right shoulder
pain on March 16, 2021. See generally Exs. 14, 17; see also Ex. 15 (group text message
from that date encouraging prayers for Petitioner, and photos of Petitioner on subsequent
dates). The daughters also recall personally witnessing Petitioner with a right shoulder
injury while visiting her in late March 2021 and beyond. See generally Exs. 14, 17. One
daughter also recalls that on March 25, 2021, the PCP “felt [Petitioner] was experiencing
a bit of depression due to her inability to do the things she loves because of her arm.” Ex.
14 at ¶ 4; but see Ex. 13 at 385 – 90 (not corroborating this memory).
IV. Respondent’s Rule 4(c) Report and Show Cause Analysis
To meet the statutory severity requirement, Petitioner must preponderantly
establish that she suffered a shoulder injury from the September 1, 2020, vaccine for at
least six months thereafter – here, until March 1, 2021.
When I issued my Show Cause Order, I stated that the case-specific evidence,
particularly the medical records, were highly relevant to judging severity. Show Cause
Order at 3. I also tentatively concluded that the evidence reflected a mild injury lasting
approximately four and one-half months post-vaccination, followed by an unexplained
eight-month treatment gap. Petitioner’s assertion that 2021 was “the height of the
Pandemic,” Ex. 7 at ¶ 2, was not particularly persuasive in explaining this treatment gap
– particularly because Petitioner herself attended in-person encounters with at least three
different providers throughout the gap period, which occurred while the Pandemic was
already underway rather than at its start in March 2020. Show Cause Order at 2 – 3.
In addition, the treatment gap pointed towards an injury that was resolving and/or
self-manageable via conservative measures. Show Cause Order at 3. Moreover,
Petitioner had not yet provided any corroborating fact witness affidavits and/or other non-
medical evidence that would help to establish the severity requirement. Id. I
acknowledged that the subsequent PCP records documented some objective findings of
a right shoulder injury, which Petitioner related back to the flu vaccine occurring one year
earlier. Id. But it was crucial for Petitioner to ensure that the evidence was complete, to
allow for a comprehensive analysis. Id.
7

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V. Responses and Further Analysis
In arguing that she can establish severity, Petitioner emphasizes the medical
records documenting a right shoulder injury in January 2021 and again in September
2021; the lack of evidence affirmatively stating that the earlier injury would self-resolve,
or point to an alternative cause; her stated fear of the Pandemic; and her supporting
affidavits. See generally Brief and Reply.
Respondent, by contrast, maintains his objection on this point – agreeing with my
earlier analysis that the treatment gap pointed towards an injury that was resolving and/or
self-manageable via conservative measures. Reply at 6. And Respondent notes that the
treatment gap “spanned the time when COVID-19 vaccines became generally available
for all Americans in spring 2021.” Id.8 Witness statements to the contrary should be
afforded little to no weight based on their late preparation, and that the contemporaneous
photos and text messages are not specific to a shoulder injury. Id.
After reviewing both parties’ arguments and all evidence submitted, I conclude that
Petitioner has not preponderantly established that her post-vaccination right shoulder
injury or its residual effects persisted for over six months. The record clearly establishes
that Petitioner’s injury was relatively mild – as evidenced by her 19-day delay in medical
treatment and subsequent conservative course, which involved just four evaluations and
imaging over approximately four and one-half months post-vaccination. I recognize the
high pain ratings and limited courses of prescription pain medications, but she appears
to have relied mostly on Tylenol and other conservative measures. She did not pursue
any steroid injections, PT, or surgery. And as Respondent contends (Response at 8),
movement of the shoulder was painful, but not objectively limited. It is thus reasonably
possible that a mild injury could resolve short of the six-month cut-off.
In addition, the treatment gap in this case, which spans the severity cut-off date,
corroborates the conclusion that Petitioner’s injury had more likely than not resolved.
Petitioner has not adequately addressed the eight-month gap in any documentation or
treatment of a right shoulder injury. I have considered Petitioner’s contentions that she
wished to avoid treatment due to concerns of COVID, but the record shows that she
attended at least fifteen (15) in-person encounters for other concerns during this period.
Those records are silent on the subject of her right shoulder. This course of conduct
reveals a patient willing to seek treatment for actual concerns – and one who easily could
8 Citing U.S. Dep’t of Health & Hum. Servs., COVID-19 Vaccines, https://www.hhs.gov/coronavirus/covid-
19-vaccines/index.html (last accessed Aug. 15, 2024) (providing a timeline of “COVID-19 Vaccine
Milestones”).
8

Case 1:21-vv-00344-UNJ Document 44 Filed 09/25/24 Page 9 of 9
have also sought treatment for a shoulder issue had she been experiencing symptoms at
the time.
Most glaringly, the record reveals that Petitioner in fact received her first two doses
of the COVID-19 vaccine9 intramuscularly in her at-issue right arm in May 2021
(approximately eight months after the at-issue flu vaccine). It is difficult to accept that
Petitioner would have accepted these additional vaccines if she was suffering from
ongoing right shoulder pain. And they represent a potential alternative cause for any
subsequent shoulder injury. Those vaccines are not addressed in the subsequent medical
records or the affidavits – which are not sufficiently persuasive to surmount the concerns
discussed herein.10 Overall, I cannot find preponderant evidence that Petitioner suffered
a right shoulder injury or its residual effects from the September 1, 2020, vaccine for over
six months.
Conclusion
Petitioner has not established the statutory severity requirement. Therefore, she is
ineligible to pursue compensation under the Program. In the absence of a timely-filed
motion for either reconsideration or review (see Appendix B to the Rules of the Court),
the Clerk shall enter judgment in accordance with this Decision.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9 COVID-19 vaccines are not currently covered under the Vaccine Program.
10 See also Leming v. Sec’y of Health & Hum. Servs., 161 Fed. Cl. 744, 760 (2022) (declining to impute any
“lack of sincerity or bad faith” to a witness’s later recollections of what a medical provider had advised, when
that advice was not recorded in the contemporaneous medical records), not disturbed on appeal, 98 F.4th
1107 (Fed. Cir. 2024).
11 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
9