VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00507
Package ID: USCOURTS-cofc-1_21-vv-00507
Petitioner: Richard Robinson
Filed: 2021-01-11
Decided: 2026-02-24
Vaccine: influenza
Vaccination date: 2019-09-28
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: denied
Award amount USD: 

AI-assisted case summary:
On January 11, 2021, Richard Robinson, then 68, filed a petition alleging that an influenza vaccine administered on September 28, 2019 caused a left shoulder injury related to vaccine administration.

The case turned on whether his shoulder complaints fit the Vaccine Injury Table definition for SIRVA. The record showed significant preexisting left-shoulder disease, including severe degenerative joint disease and bone-on-bone glenohumeral osteoarthritis. Mr. Robinson initially denied prior left shoulder pain, but later amended his affidavit after medical records showed intermittent earlier complaints. His orthopedist, Dr. Oates, described advanced arthritis, found no evidence of a flu-shot complication on MRI, and stated that the symptoms were mostly due to arthritis.

Respondent disputed the Table criteria. Special Master Daniel T. Horner found that Mr. Robinson did not establish that his symptoms were unexplained by prior shoulder disease, did not prove reliable onset, and did not rule out osteoarthritis as an alternative explanation. Although the pain was localized to the vaccinated shoulder, the other Table requirements were not met. Entitlement was denied on February 24, 2026, with no compensation awarded.

Theory of causation field:
Influenza vaccine September 28, 2019 at age 68 allegedly causing left SIRVA. DENIED. Key evidence: severe preexisting degenerative left-shoulder osteoarthritis, inconsistent affidavit history, delayed care, intervening appointment without shoulder complaint, and Dr. Oates' view that arthritis explained symptoms. SM Daniel T. Horner found QAI criteria not met except localization; no injury award. Petition January 11, 2021; decision February 24, 2026.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00507-0
Date issued/filed: 2026-03-27
Pages: 21
Docket text: PUBLIC DECISION (Originally filed: 2/24/2026) regarding 56 DECISION of Special Master. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made.
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Case 1:21-vv-00507-UNJ Document 57 Filed 03/27/26 Page 1 of 21
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-507V
Filed: February 24, 2026
Special Master Horner
RICHARD ROBINSON,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION1
On January 11, 2021, petitioner filed a petition under the National Childhood
Vaccine Injury Act (“Vaccine Act”), 42 U.S.C. § 300aa-10, et seq. (2012),2 alleging that
he suffered a Table Injury of a Shoulder Injury Related to Vaccine Administration
(“SIRVA”) affecting his left shoulder and following an influenza (“flu”) vaccination he
received on September 28, 2019. (ECF No. 1.) For the reasons set forth below, I
conclude that petitioner is not entitled to compensation.
1 Because this document 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 document 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 Within this decision, all citations to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C.
§ 300aa-10, et seq.
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I. Applicable Statutory Scheme
Under the National Vaccine Injury Compensation Program, compensation
awards are made to individuals who have suffered injuries after receiving vaccines. In
general, to gain an award, a petitioner must make a number of factual demonstrations,
including showing that an individual received a vaccination covered by the statute;
received it in the United States; suffered a serious, long-standing injury; and has
received no previous award or settlement on account of the injury. Finally – and the key
question in most cases under the Program – the petitioner must also establish a causal
link between the vaccination and the injury.
In some cases, the petitioner may simply demonstrate the occurrence of what
has been called a “Table Injury.” That is, it may be shown that the vaccine recipient
suffered an injury of the type enumerated in the “Vaccine Injury Table,” corresponding to
the vaccination in question, within an applicable time period following the vaccination
also specified in the Table. If so, the Table Injury is presumed to have been caused by
the vaccination, and the petitioner is automatically entitled to compensation, unless it is
affirmatively shown that the injury was caused by some factor other than the
vaccination. § 300aa-13(a)(1); § 300aa-11(c)(1)(C)(i); § 300aa-14(a).
As relevant here, the Vaccine Injury Table lists SIRVA as a compensable injury if
it occurs within 48 hours of vaccine administration. § 300aa-14(a), amended by 42
C.F.R. § 100.3. Table Injury cases are guided by statutory “Qualifications and aids in
interpretation” (“QAI”), which provide more detailed explanation of what should be
considered when determining whether a petitioner has suffered an injury listed on the
Vaccine Injury Table. 42 C.F.R. § 100.3(c). To be considered a “Table SIRVA,” a
petitioner must show that his/her injury fits within the following definition:
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 . . . . 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;
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(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
(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, and any other
neuropathy).
42 CFR § 100.3(c)(10).
Alternatively, if no injury falling within the Table can be shown, the petitioner may
still demonstrate entitlement to an award by showing that the vaccine recipient’s injury
was caused-in-fact by the vaccination in question. § 300aa-13(a)(1)(A); § 300aa-
11(c)(1)(C)(ii). To so demonstrate, a petitioner must show that the vaccine was “not
only [the] but-for cause of the injury but also a substantial factor in bringing about the
injury.” Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321-22 (Fed. Cir.
2010) (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1352-53
(Fed. Cir. 1999)); Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1355
(Fed. Cir. 2006). In particular, a petitioner must show by preponderant evidence: (1) a
medical theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason for the
injury; and (3) a showing of proximate temporal relationship between vaccination and
injury in order to prove causation-in-fact. Althen v. Sec’y of Health & Human Servs.,
418 F.3d 1274, 1278 (Fed. Cir. 2005).
For both Table and Non-Table claims, Vaccine Program petitioners must
establish their claim by a “preponderance of the evidence.” § 300aa-13(a)(1). That is, a
petitioner must present evidence sufficient to show “that the existence of a fact is more
probable than its nonexistence.” Moberly, 592 F.3d at 1322 n.2. Proof of medical
certainty is not required. Bunting v. Sec’y of Health & Human Servs., 931 F.2d 867,
872-73 (Fed. Cir. 1991). However, a petitioner may not receive a Vaccine Program
award based solely on his assertions; rather, the petition must be supported by either
medical records or by the opinion of a competent physician. § 300aa-13(a)(1). Once a
petitioner has established their prima facie case, the burden then shifts to respondent to
prove, also by preponderant evidence, that the alleged injury was caused by a factor
unrelated to vaccination. Althen, 418 F.3d at 1278 (citations omitted); § 300aa-
13(a)(1)(B).
Cases in the Vaccine Program are assigned to special masters who are
responsible for “conducting all proceedings, including taking such evidence as may be
appropriate, making the requisite findings of fact and conclusions of law, preparing a
decision, and determining the amount of compensation, if any, to be awarded.” Vaccine
Rule 3(b)(1). Special masters must ensure each party has had a “full and fair
opportunity” to develop the record but are empowered to determine the format for taking
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evidence based on the circumstances of each case, including having the discretion to
decide cases without an evidentiary hearing. Vaccine Rule 3(b)(2); Vaccine Rule 8(a);
Vaccine Rule 8(d). Special masters are not bound by common law or statutory rules of
evidence but must consider all relevant and reliable evidence in keeping with
fundamental fairness to both parties. Vaccine Rule 8(b)(1).
II. Procedural History
After this case was initially filed, it remained in Pre-Assignment Review (“PAR”)
for over a year and a half while petitioner filed medical records to support the claim.
During this period, petitioner filed Exhibits 1-13, mostly consisting of medical records,
but also including an affidavit marked as Exhibit 1 and a PAR questionnaire marked as
Exhibit 10. Based on the allegations in the petition, this case was initially assigned to
the Chief Special Master as part of the Special Processing Unit (“SPU”), which is
intended to expedite cases having a high likelihood of informal resolution. (ECF Nos.
27-28.) Thereafter, petitioner was directed to present a demand to respondent, but also
to file a second affidavit addressing a notation in his medical records indicating that he
had been experiencing chronic shoulder pain. (ECF No. 34, p. 2 (citing Ex. 4, p. 5).)
Petitioner filed his second affidavit in June of 2023 (Ex. 14); however, respondent
was unwilling to engage in settlement discussions (ECF No. 38) and filed a Rule 4
Report recommending against compensation in October of 2023 (ECF No. 39).
Respondent argued that petitioner could not meet any of the elements of a Table
SIRVA, noting he had preexisting left shoulder pain, that he did not demonstrate onset
of new symptoms within 48 hours of his vaccination, that his pain was not limited to his
left shoulder, and that his condition was otherwise explained by arthritis. (Id. at 7-8.) As
a result, the case was reassigned to the undersigned for further litigation. (ECF Nos. 40-
41.)
After the case was reassigned, I noted that petitioner’s medical records lacked
any indication of how petitioner came to be referred to both physical therapy and
orthopedic evaluation for his left shoulder complaints. (ECF No. 42.) I explained that
this information may be significant in light of respondent’s defense of the case and
directed the parties to address the issue. (Id.) Petitioner then filed additional medical
records in May of 2024 (Ex. 15), though these records did not include any medical
encounter records that would explain the referrals.
Petitioner was then directed to file a status report on behalf of the parties
indicating whether they proposed to first resolve the factual question of onset or the
medical issue of petitioner’s chronic osteoarthritis. Petitioner did not comply with this
order and so he was instead directed to file an expert report supporting his claim.
However, advising that he was unable to secure an expert opinion, petitioner instead
moved for a ruling on the written record. (ECF No. 52, p. 2.) Respondent filed his
response in February of 2025 (ECF No. 53), and petitioner did not file any reply.
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In light of the above, I have determined that the parties have had a full and fair
opportunity to develop the record and that it is appropriate to rule on the existing record.
See Vaccine Rule 8(d); Vaccine Rule 3(b)(2); Kreizenbeck v. Sec’y of Health & Human
Servs., 945 F.3d 1362, 1366 (Fed. Cir. 2020) (noting that “special masters must
determine that the record is comprehensive and fully developed before ruling on the
record”). Accordingly, petitioner’s motion is now ripe for resolution.
III. Summary of Record Evidence
Petitioner received the flu vaccination at issue in his left deltoid on September 28,
2019. (Ex. 6, p. 3; Ex. 1, p. 2.) He was sixty-eight years old at the time with a history
that included, inter alia, fibromyalgia, chronic pain and fatigue, and generalized
osteoarthritis. (Ex. 11, pp. 2, 15; Ex. 1, p. 1.) Both petitioner’s medical records (Ex. 4,
p. 1) and his affidavit submitted for this case (Ex. 14, p. 1) confirm that he was
experiencing chronic left shoulder pain prior to his receipt of this vaccination. However,
he averred that his pre-vaccination pain was only occasional, “never constant or severe
and would eventually subside completely.”3 (Id.) Petitioner further averred that, after
vaccination, “the pain in my left shoulder became constant and severe and began to
limit my range of motion.” (Id.) Petitioner stated that he was pain-free at the time of
vaccination and that, within 48 hours of vaccination, he “began to feel pain and
soreness in my left arm and shoulder that progressively worsened.” (Ex. 1, p. 2.)
On October 15, 2019, about seventeen days post-vaccination, petitioner
presented to his primary care provider. (Ex. 2, pp. 14-18.) However, the reason for the
encounter was to follow up regarding the results of a prior CT scan of petitioner’s
gallbladder. (Id. at 14.) Petitioner’s shoulder pain was not discussed at this encounter.
(Id. at 14-18.) Petitioner argues that it should be viewed as significant that this
encounter was for a specific purpose unrelated to his shoulder. (ECF No. 52, pp. 11-
12.) Notably though, while the purpose of the encounter was to review the CT scan,
petitioner did also at that time report a new, unrelated symptom of “frequently losing his
balance.” (Id. at 14.) And, while the musculoskeletal exam did not specifically review
petitioner’s shoulder, it did assess petitioner’s balance concern, noting that he “[w]as not
able to stand on one foot unassisted.” (Id. at 16.) A separate notation regarding
petitioner’s extremities noted that he had “full range of motion of all joints.”4 (Id.)
Petitioner was referred to physical therapy for his balance problem and his physician
also reviewed his other chronic complaints. (Id. at 16-17; Ex. 5, p. 118.) There is no
indication in the record that petitioner followed up on the physical therapy referral for his
balance issue.
3 By contrast, petitioner’s initial affidavit filed in this case had denied having any history of left shoulder
pain prior to vaccination. (Ex. 1, p. 1.)
4 However, a later encounter record from this same practice, but with a different physician, included the
same notation even at an encounter during which petitioner did explicitly seek care for shoulder pain.
(Ex. 2, pp. 1, 4.) Yet, unlike this record, that encounter record did additionally include a separate and
more detailed shoulder examination. (Id. at 5.)
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Petitioner averred that he had initially thought his shoulder pain would resolve on
its own; however, “[m]y pain continued to worsen to the point that I sought medical
treatment.” (Ex. 1, p. 2.) He further stated that, “[b]ecause my pain would not relent, I
saw multiple providers at my primary care clinic, including Jennifer Gruenwald, ARNP,
Dr. Fred Chavez, and Dr. David S. McKinney for my shoulder pain. Dr. Chavez referred
me to physical therapy for my left shoulder pain.” (Id.) The medical records document
that petitioner was referred to physical therapy for his shoulder pain as of March 3,
2020, close to six months post-vaccination (Ex. 5, p. 117), but no encounter records are
available to explain the referral and no records document the series of encounters
petitioner averred had occurred with his primary care providers. A later record indicates
within the history that, prior to being referred to physical therapy petitioner had been
seen at clinic where he had x-rays that showed moderate glenohumeral arthritis. (Ex. 2,
p. 1.) This is noted to have occurred in February of 2020. (Id. at 6.) However, these
records have not been filed.
The physical therapy referral orders indicate that the date of onset of petitioner’s
shoulder pain was February 25, 2020 (Ex. 15, pp. 3, 7), which is also the onset date
listed on the resulting physical therapy records, though that is not the history that
petitioner provided at the initial evaluation, which occurred on June 15, 2020, about
eight and a half months post-vaccination (Ex. 4, p. 5; Ex. 15, p. 4). When petitioner
presented for physical therapy, he described a post-vaccination worsening of his left
shoulder pain as depicted in the medical record excerpt below:
(Ex. 4, p. 5; Ex. 15, p. 4.)
The physical therapist documented petitioner’s function as depicted in the
medical record excerpt below:
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(Ex. 4, p. 5; Ex. 15, p. 4.) Petitioner returned to physical therapy only once and was
later discharged for noncompliance. (Ex. 11, p. 75.)
On October 26, 2020, petitioner established care with a new physician at his
primary care provider’s office. (Ex. 2, p. 1.) He presented for a “med review” and also
“would like to review problems with left shoulder pain dates back about 1 year.” (Id.)
Petitioner explained that “his left shoulder began hurting after receiving an influenza
vaccine at Walmart in September 2019.” (Id.) He further explained that “the shoulder is
painful when he tries to lift it above shoulder height or reach behind his back. He does
note some popping and clicking. He denied any remote trauma to the shoulder and has
not had any prior factures in this area.” (Id.) He was referred to an orthopedist. (Id. at
6.)
Petitioner first presented to orthopedic care with Dr. Oates on December 1, 2020.
(Ex. 7, p. 2.) The history he provided was as depicted in the medical record excerpt
below:
(Id.)
Dr. Oates completed a physical exam and also reviewed x-ray images from
February 27, 2020, which were noted in part to “reveal bone-on-bone change in the
glenohumeral joint.” (Id. at 3.) Dr. Oates’s discussion and plan were as depicted in the
medical record excerpt below:
(Id.) The assessments at this encounter were (1) “[p]rimary osteoarthritis, left shoulder”
and (2) “[c]omplication of injection, initial encounter.” (Id.) Petitioner was to follow up
after completing the MRI. (Id.)
Petitioner then presented for a left shoulder MRI on December 7, 2020. (Ex. 8,
p. 1.) The radiologist’s impression included four findings:
(1) Tendinosis and a low to moderate grade partial tear affecting the distal
supraspinatus and subscapularis, but with no full thickness rotator cuff rupture;
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(2) Moderate to severe glenohumeral joint osteoarthritis and moderate
acromioclavicular arthritis with moderate joint effusion and debris concerning for
synovitis; and
(3) Evidence of an extensive labral tear; and
(4) Tendinosis and a low to moderate grade partial tear of the long head of the
biceps tendon.
(Id. at 1-2.)
Petitioner then returned to Dr. Oates on December 15, 2020. (Ex. 7, p. 5.) Dr.
Oates reviewed the MRI as depicted in the medical record excerpt below:
(Id.) And his discussion with petitioner after review of the MRI was as depicted in the
medical record excerpt below:
(Id.) The assessment remained unchanged. (Id.)
Petitioner initially reported good relief from his cortisone injection when he
returned to Dr. Oates in June of 2021, but elected to proceed with a shoulder
replacement. (Ex. 9, p. 3.) Thus, Dr. Oates ordered a CT scan to plan for surgery. (Id.
at 4.) Petitioner ultimately declined to go forward with the surgery as planned (Ex. 13,
p. 4); however, the CT scan was completed in the interim. The CT scan showed, inter
alia, “[s]evere glenohumeral osteoarthritis with bone-on-bone appearance” and the
impression was “[a]dvanced left shoulder joint degeneration.” (Id. at 9.)
The remainder of the medical records are less significant to the issues discussed
herein.5
5 Moriarty v. Sec’y of Health & Human Servs., 844 F.3d 1322, 1328 (Fed. Cir. 2016) (“We generally
presume that a special master considered the relevant record evidence even though he does not
explicitly reference such evidence in his decision.”); see also Paterek v. Sec’y of Health & Human Servs.,
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IV. Discussion
a. Legal standard for fact finding
The process for making determinations in Vaccine Program cases regarding
factual issues begins with consideration of the medical records. § 300aa-11(c)(2). The
special master is required to consider “all [ ] relevant medical and scientific evidence
contained in the record,” including “any diagnosis, conclusion, medical judgment, or
autopsy or coroner’s report which is contained in the record regarding the nature,
causation, and aggravation of the petitioner's illness, disability, injury, condition, or
death,” as well as “the results of any diagnostic or evaluative test which are contained in
the record and the summaries and conclusions.” § 300aa-13(b)(1)(A)-(B). However,
the special master is then required to weigh all of the evidence presented. See Burns v.
Sec’y of Health & Human 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
contemporaneous medical records than to other evidence). The special master is
obligated to 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, 204 (2013) (quoting Vaccine Rule 8) (citing § 300aa-
12(d)(3)), aff’d sub nom. LaLonde v. Sec’y of Health & Human Servs., 746 F.3d 1334
(Fed. Cir. 2014); see also Burns, 3 F.3d at 416-17.
The Federal Circuit has held that contemporaneous medical records are
ordinarily to be given significant weight due to the fact that “[t]he 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 & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir.
1993). Thus, where medical records are clear, consistent, and complete, they should
be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-
1585V, 2005 WL 6117475, at *19 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this
rule is not absolute. There is no presumption that medical records are accurate or
complete as to all of a patient’s physical conditions. Kirby v. Sec’y of Health & Human
Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Afterall, “medical records are only as
accurate as the person providing the information.” Parcells v. Sec’y of Health & Human
Servs., No. 03-1192V, 2006 WL 2252749, at *2 (Fed. Cl. Spec. Mstr. July 18, 2006).
“[T]he absence of a reference to a condition or circumstance is much less significant
than a reference which negates the existence of the condition or circumstance.”
Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991) (quoting lower
court opinion), aff’d per curiam, 968 F.2d 1226 (Fed. Cir. 1992), cert. denied sub nom.
Murphy v. Sullivan, 506 U.S. 974 (1992). When witness testimony is offered to
overcome the weight generally afforded to contemporaneous medical records, such
527 F. App’x 875, 884 (Fed. Cir. 2013) (“Finding certain information not relevant does not lead to—and
likely undermines—the conclusion that it was not considered.”).
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testimony must be “consistent, clear, cogent[,] and compelling.” Camery v. Sec’y of
Health & Human Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
& Human Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30,
1998)). Further, a special master must consider the credibility of the individual offering
the testimony. See Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379
(Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575 (Fed.
Cir. 1993).
b. SIRVA QAI (1) – No history of pain, inflammation or dysfunction of the
affected shoulder
The first SIRVA criterion requires that there be no relevant prior history of
shoulder concerns (pain, inflammation, or dysfunction) that could explain the post-
vaccination presentation (signs, symptoms, examination findings, and/or diagnostic
studies). That is, the prior history must not be one that “would explain” the petitioner’s
post-vaccination presentation. 42 C.F.R. § 100.3(c)(10)(I). Thus, ambiguous or
isolated notations of prior shoulder pain do not prevent a petitioner from meeting this
criterion. E.g., Fry v. Sec’y of Health & Human Servs., No. 18-1091V, 2020 WL
8457671, at *3 (Fed. Cl. Spec. Mstr. Dec. 16, 2020). The Table SIRVA criteria “does
not necessarily require a spotless prior health history of the affected shoulder.” Kelly v.
Sec’y of Health & Human Servs., No. 17-1918V, 2022 WL 1144997, at *17 (Fed. Cl.
Spec. Mstr. Mar. 24, 2022); O’Leary v. Sec’y of Health & Human Servs., No. 18-584V,
2021 WL 3046617, at *8 (Fed. Cl. Spec. Mstr. June 24, 2021) (finding SIRVA QAI (I)
met where petitioner had a prior remote history of shoulder trauma that had “recovered
nicely”).
In this case, however, petitioner acknowledges both that he had preexisting left
shoulder pain and that his medical records evidence degenerative shoulder conditions
including findings of osteoarthritis. (ECF No. 52, p. 9; see also Ex. 14, pp. 1-2; Ex. 4, p.
5; Ex. 7, pp. 3, 5.) Indeed, petitioner’s medical records consistently note petitioner’s
joint degeneration to be severe, chronic, or advanced, from the time of the very first
available treatment record. (Ex. 4, p. 5; Ex. 2, p. 6; Ex. 7, p. 5; Ex. 9, p. 4; Ex. 13, p. 9.)
Nonetheless, he argues that “[t]hese findings, absent some connection to petitioner’s
symptoms do not rise to the level of a disqualifying fact for the purposes of establishing
a Table SIRVA.” (ECF No. 52, p. 10.) Instead, he argues that “his physicians do not
clearly attribute his symptoms to his osteoarthritis.” (Id.) Petitioner argues that his
preexisting arthritis would have to wholly explain his symptoms independent of
vaccination before it would counsel against his SIRVA claim. (Id. (citing Lang v. Sec’y
of Health & Human Servs., No. 17-995V, 2020 WL 7873272, at *13 (Fed. Cl. Spec.
Mstr. Dec. 11, 2020)).)6
6 Respondent reasonably argues that Lang is distinguishable, because the analysis petitioner cites
pertained to the fourth SIRVA QAI criterion, rather than the first criterion, in a case in which the petitioner
had been found not to have any prior history of shoulder pain or dysfunction. (ECF No. 53, pp. 7-8.)
Though they can be interrelated, the first and fourth SIRVA QAI criteria are distinct analyses.
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As a threshold matter, petitioner does not accurately characterize his
orthopedist’s diagnosis and opinion. When petitioner first presented for an orthopedic
evaluation, Dr. Oates stressed that petitioner’s x-rays (which showed bone-on-bone
change in the glenohumeral joint) “clearly show” osteoarthritis. (Ex. 7, p. 3.) And, while
Dr. Oates was willing to contemplate an additional role for petitioner’s vaccination in
“potentially” affecting his condition, he noted that “I think that his symptoms currently are
mostly due to the arthritic change.” (Id.) After petitioner underwent an MRI, which Dr.
Oates interpreted as showing “severe degenerative joint disease” and no evidence of
complication from the flu shot, Dr. Oates then advised that petitioner suffered chronic
and severe osteoarthritis of the left shoulder and that the flu vaccine “did not cause the
underlying chronic arthritis.” (Id. at 5.) Thus, even accepting that Dr. Oates did not
entirely rule out the vaccine as an additional contributing factor, Dr. Oates very clearly
did diagnose petitioner’s condition as chronic osteoarthritis and did attribute petitioner’s
symptoms to that osteoarthritis.
Additionally, petitioner has not been diagnosed with any shoulder condition other
than osteoarthritis7 and, apart from his own subjective attribution of his shoulder pain to
his vaccination, petitioner has not explained how his post-vaccination presentation is
inconsistent with the chronic osteoarthritis he otherwise admits pre-dated his
vaccination. Even as they entertained his report of a post-vaccination onset, none of
petitioner’s treating physicians actually opined that any of the signs, symptoms,
examination findings, and/or diagnostic studies, relating to petitioner’s post-vaccination
presentation were incompatible or inconsistent with osteoarthritis. And, of course,
petitioner was unable to secure an expert opinion to otherwise support such an
assertion. Indeed, when petitioner’s primary care provider referred him for orthopedic
evaluation, it was noted to be specifically out of concern for arthritis. (Ex. 5, pp. 7, 116.)
As petitioner stresses, Dr. Oates did also offer some reasoning as to how the
vaccination may have also contributed to petitioner’s overall condition. (ECF No. 52, p.
10 (citing Ex. 9).) However, this is not persuasive for several reasons. First, Dr.
Oates’s opinion was only ever tentatively stated. He initially stated that petitioner “may
have had a reaction to his flu shot,” but immediately followed that notation with the
assertion that “however his radiographs clearly show osteoarthritis of the glenohumeral
joint.” (Ex. 7, p. 3.) Moreover, he premised this opinion on subsequent MRI support,
which he ultimately found to be lacking. (Compare id. at 3, with id. at 5.) After reading
petitioner’s MRI, Dr. Oates felt that vaccine involvement was merely “possible.” (Id. at
5.) Second, and relatedly, Dr. Oates’s explanation as to how petitioner’s vaccine may
have played a role did not remain consistent. When Dr. Oates first saw petitioner, he
speculated that petitioner’s MRI might demonstrate either inflammation of fluid
collections relative to the injection (Id. at 3), but after the MRI was negative for such a
finding, he instead suggested that perhaps “muscle aches and joint pains that are
associated with flu injections from time to time triggered his ongoing shoulder pain” (Id.
at 5). Yet, this latter explanation lacks any actual reasoning to explain that view, and
7 The orthopedist did also list the ICD code for “complication of injection” under his assessment. (E.g.,
Ex. 7, p. 5.)
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Dr. Oates further explicitly reiterated that the vaccine did not cause the arthritis and that
“I cannot prove causation.”8 (Id.) Reading Dr. Oates’s assessment over the course of
the two encounters holistically, he appears to have believed that a post-vaccination
process was a less likely explanation than osteoarthritis. And, finally, the medical
records reveal that, contrary to what the evidence otherwise shows, petitioner reported
to Dr. Oates that he had been asymptomatic prior to vaccination. (Id.) This fatally
undercuts any notion that there would be significance in the fact that Dr. Oates’s
assessment did not clearly or explicitly encompass his pre-vaccination shoulder pain.
For all these reasons, petitioner has not met his burden of proof under the first
SIRVA criterion.
c. SIRVA QAI (2) – Pain occurs within the specified time-frame (i.e. 48
hours)
The second SIRVA criterion requires that the petitioner experience an onset of
shoulder pain within 48 hours of the vaccination at issue. 42 C.F.R. § 100.3(c)(10)(II).
The Vaccine Act explicitly instructs that a special master may find the time period for the
first symptom or manifestation of onset required for a Table Injury is satisfied “even
though the occurrence of such symptom or manifestation was not recorded or was
incorrectly recorded as having occurred outside such period.” § 300aa-13(b)(2).
However, such a finding must in all events be supported by preponderant evidence. Id.
Petitioner implicitly acknowledges both that he delayed seeking care for a
significant period of time and also that he did not report his shoulder pain at the first
available opportunity, i.e., that an intervening medical appointment occurred before he
first reported and sought treatment for his alleged injury. (ECF No. 52, pp. 10-12.)
However, he argues that neither of these factors is dispositive of the onset of shoulder
pain. (Id.) In particular, he contends that, because his October 15, 2019 encounter
occurred during a period when petitioners commonly delay treatment, “another layer of
analysis” is needed to determine the purpose of the intervening medical appointment
and whether it was therefore reasonable for the shoulder pain to go unmentioned. (Id.
at 11 (citing Williams v. Sec’y of Health & Human Servs., No. 17-830V, 2019 WL
1040410, at *8, *23 (Fed. Cl. Spec. Mstr. Jan. 31, 2019)).) Because the October 15,
2019 encounter was for a specific purpose, petitioner argues that the history he later
provided once he did start pursuing treatment should be credited. (Id. at 12.)
While petitioner is correct that neither his delay in seeking care nor his October
15, 2019 encounter are singularly dispositive, they are still potentially probative with
careful consideration. “Although treatment delays do not in all cases prevent SIRVAs
8 I stress here that I am not placing a burden on petitioner to prove that his condition was vaccine caused,
as that would be inconsistent with the presumption of causation he is afforded if he meets the Table
requirements. The nature of Dr. Oates’s opinion as to a potential causal relationship between the
vaccination and petitioner’s diagnosed condition is relevant to the Table analysis only with respect to
assessing petitioner’s argument that his treating physicians had not clearly connected his symptoms to
his osteoarthritis. Dr. Oates’s causal opinion is otherwise separately assessed with respect to causation-
in-fact, below.
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from succeeding, lengthy delays in seeking care cast doubt on whether a claimant can
substantiate a connection between vaccination and an alleged injury, and may result in
dismissal.” Nomick v. Sec’y of Health & Human Servs., No. 22-1538V, 2025 WL
2953202, at *10 (Fed. Cl. Spec. Mstr. Sept. 19, 2025). Thus, for example, similar to this
case, a prior petitioner did not establish an immediate post-vaccination onset of
shoulder pain where her medical records did not associate her shoulder pain to her
vaccination until nearly seven months post-vaccination and she had already had a full
physical exam from her primary care provider about two months post-vaccination.
Orban v. Sec’y of Health & Human Servs., No. 21-0978V, 2024 WL 3205134, at *10-12
(Fed. Cl. Spec. Mstr. May 28, 2024); see also N.B. v. Sec’y of Health & Human Servs.,
No. 20-0151V, 2023 WL 183458, at *4, *7-8 (Fed. Cl. Spec. Mstr. July 19, 2022) (finding
onset was not within 48 hours when the petitioner did not report shoulder pain until four
months after vaccination despite multiple intervening appointments – including one with
her PCP, from whom she ultimately sought care for her shoulder problem – that were
silent on shoulder pain); Porcello v. Sec’y of Health & Human Servs., No. 17-1255V,
2020 WL 4725507, at *1-2, 9-10 (Fed. Cl. Spec. Mstr. June 22, 2020) (dismissing claim
where the petitioner did not report arm pain until nearly four months after vaccination,
despite intervening examination finding normal range of motion), mot. for rev. denied,
152 Fed. Cl. 469 (2020).
Here, although petitioner’s October 15, 2019 primary care encounter was
initiated for the specific purpose of reviewing his CT scan, the record confirms that
petitioner did take the opportunity to raise a new medical issue (balance problems) and
that his other chronic problems were also discussed. (Ex. 2, pp. 14-18). Additionally,
the physical exam portion of this encounter record both confirms that petitioner was
examined for the new complaint he did raise (again, a balance problem) and reports
that petitioner had full range of motion of his upper extremities. (Ex. 2, p. 15. But see
note 4, supra.) Accordingly, the evidence demonstrates that the encounter was not
limited to review of the CT scan. Instead, the encounter is better understood as a
general, if not comprehensive, primary care appointment, which is a type of
appointment at which one might expect a complaint such as shoulder pain to be raised.
Indeed, petitioner’s later referrals for physical therapy and orthopedic evaluation of his
shoulder pain did later originate from the same primary care office. (Ex. 5, pp 116-17.)
Thus, the October 15, 2019 encounter record does constitute evidence weighing
against petitioner’s allegation of a 48-hour post-vaccination onset of shoulder pain.
Petitioner avers that, despite immediate post-vaccination pain, “I did not seek in-
person medical treatment with the urgency I otherwise would have due to safety
concerns associated with the COVID-19 pandemic and suggestions and orders from
governmental bodies and the health community that limited travel and access to certain
medical services.” (Ex. 1, p. 3.) However, while this certainly could help explain
petitioner’s later pattern of care, it does not explain why petitioner did not report
shoulder pain at a primary care encounter in October of 2019 or why he would have
delayed seeking care prior to about March of 2020, when Covid-related shutdowns
began in the U.S. Although the corresponding medical records have not been filed,
there are indications within the medical records that petitioner did first seek care for his
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shoulder pain in February of 2020, at which time he was then referred to physical
therapy with a listed onset date for his left shoulder pain of February 25, 2020. (Ex. 2,
pp. 1, 6; Ex. 4, p. 5; Ex. 15, pp. 3, 7.) While I do not necessarily conclude that the
evidence preponderates in favor of a February 2020 onset of shoulder pain, these
notations do significantly muddy the waters, especially given that they are in harmony
with the fact that petitioner did not report shoulder symptoms at his October 15, 2020
encounter.9
No medical encounter record documents petitioner’s alleged history of post-
vaccination shoulder pain until his physical therapy encounter of June 15, 2020, more
than eight months post-vaccination. (Ex. 4, p. 5.) At that time, although petitioner
associated his pain to his vaccination, he was no more specific than to state that onset
occurred at some time “in October 2019.” (Id.) With the vaccination at issue having
occurred on September 28, 2019, this notation is explicit in placing onset beyond 48-
hours post vaccination. However, even if granting petitioner the inference that he
simply could not recall the precise date of his vaccination,10 the description “in October
2019” is still too broad to reasonably implicate a 48-hour onset without more, especially
because it also encompasses a period after the October 15, 2019 primary care
encounter at which he did not report any shoulder pain. Standing alone, the fact that a
petitioner perceives their pain as vaccine-related does not automatically mean it
occurred within 48 hours of vaccination. E.g. Robinson v. Sec’y of Health & Human
Servs., No. 21-32V, 2024 WL 4200125, at *8 (Fed. Cl. Spec. Mstr. Aug. 19, 2024)
(explaining that in that case “the records confirm that petitioner reported onset occurring
about two weeks post-vaccination while also explicitly suspecting the symptoms were
vaccine-related.”) When petitioner subsequently established care with Dr. McKinney in
October of 2020 (Ex. 2, p. 1) and when he sought orthopedic care from Dr. Oates in
December of 2020 (Ex. 7, p. 2), the history he provided was likewise no more specific
than to indicate that petitioner experienced pain “after” vaccination.11
9 Later primary care records also indicate that petitioner reported having received an unspecified
formulation of a zoster vaccine on December 13, 2019, between the time of his October 15, 2019 primary
care encounter and his later referral to physical therapy. (Ex. 11, pp. 63, 84.)
10 However, such an inference is undermined by the fact that petitioner did correctly report at subsequent
medical encounters that his flu vaccination had been administered in late September. (Ex. 2, p. 1; Ex. 7,
p. 2.)
11 By that time, the medical records specifically note that petitioner had retained an attorney relative to his
alleged vaccine injury. (Ex. 7, p. 2.) Indeed, petitioner filed this action in January of 2021, the month
following his first appointment with Dr. Oates. While I do give these encounter records weight as genuine
treatment records, this does still represent a consideration in the overall weighing of these specific
records against the record as a whole. See Crittenden v. Sec’y of Health & Human Servs., No. 21-0215V,
2024 WL 5261958, at *9 (Fed. Cl. Spec. Mstr. Nov. 21, 2024) (inferring that medical visit made during
litigation may have been for the purpose of bulwarking the claim “as much, if not more than, for treatment
of an actual medical concern”); Watts v. Sec’y of Health & Human Servs., No. 17-1494V, 2019 WL
4741748, at *7 (Fed. Cl. Spec. Mstr. Aug. 13, 2019) (treatment record obtained just before filing claim is
of “greatly reduce[d] . . . probative value”); Milik v. Sec’y of Health & Human Servs., No. 01-64V, 2014 WL
6488735, at *12 n.16 (Fed. Cl. Spec. Mstr. Oct. 29, 2014) (giving less weight to record created for
litigation purposes), mot. for rev. denied, 121 Fed. Cl. 68 (2015), aff'd, 822 F.3d 1367 (Fed. Cir. 2016).
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While it would not be reasonable to expect petitioner’s medical records to include
language directly parallel to that of the Vaccine Injury Table, accord § 300aa-13(b)(2),
the histories available in this case, though they do subjectively associate petitioner’s
pain to vaccination, are vague with respect to timing. Overall, the medical records
reflect a paucity of specific notations as to onset that stands in contrast to many other
SIRVA cases in which medical records readily offer reasonably specific descriptions of
onset fairly interpreted as indicative of a Table SIRVA. E.g., Chen v. Sec’y of Health &
Human Servs., No. 21-0982V, 2025 WL 1454103, at *6 (Fed. Cl. Spec. Mstr. Apr. 4,
2025) (explaining that while “after” vaccination leaves room for interpretation, “ever
since” is fairly understood as meaning onset was immediate); Williams v. Sec’y of
Health & Human Servs., No. 17-1046V, 2020 WL 3579763, at *5 (Fed. Cl. Spec. Mstr.
Apr. 1, 2020) (crediting a notation of “after” vaccination when paired with a notation of “x
3 months” and where other records indicated pain occurred “since, “after receiving,”
“following,” and “very soon after” vaccination). Moreover, as explained above, the
medical records provide some specific reasons to doubt a 48-hour onset given that (1)
petitioner’s shoulder pain was neither reported nor detected during his only
documented, reasonably contemporaneous medical encounter on October 15, 2019; (2)
he did not begin to report this history until more than eight months after the alleged
onset; and (3) the medical records also include contradictory notations of an onset
occurring in February of 2020.
The only evidence of record that specifically places the onset of petitioner’s
symptoms within 48 hours of his vaccination are his own sworn statements. Of course,
sworn statements are entitled to some weight. In this case, however, petitioner’s
statements raise two credibility issues. First, petitioner’s account has not been
consistent. When petitioner first filed his petition, he averred that he had no history of
prior left shoulder pain. (Ex. 1, p. 1.) It was only after being prompted by the court to
address the fact that his medical records were to the contrary that petitioner ultimately
conceded that he did have a prior history of left shoulder pain, albeit allegedly
intermittent. (Ex. 14, p. 1.) Second, it is concerning that petitioner has been unable to
produce medical records that corroborate his recollection that he had multiple primary
care encounters regarding his shoulder pain in the months following his vaccination and
prior to his physical therapy evaluation. (Ex. 1, p. 2.) As explained above, the limited
medical records that are available with respect to the physical therapy referral place
onset of petitioner’s shoulder pain in February of 2020.
For all these reasons, petitioner has not met his burden of proof under the
second SIRVA criterion.
d. SIRVA QAI (3) – Pain and reduced range of motion are limited to the
shoulder in which the intramuscular vaccine was administered
The third SIRVA criterion requires that the post-vaccination pain and reduced
range of motion be limited to the affected shoulder. 42 C.F.R. § 100.3(c)(10)(III). This
requirement encompasses an affirmative showing that the petitioner’s presentation
included a reduction in range of motion. Bolick v. Sec’y of Health & Human Servs., No.
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20-893V, 2023 WL 8187307, at *6-8 (Fed. Cl. Spec. Mstr. Oct. 19, 2023). Otherwise,
the third SIRVA criterion focuses on whether “the condition is localized to the shoulder.”
Chu v. Sec’y of Health & Human Servs., No. 21-1185, 2026 WL 248647, at *29 (Fed. Cl.
Jan. 28, 2026) (emphasis omitted) (citing 82 Fed. Reg. 6294, 6296); see also
Grossmann v. Sec’y of Health & Human Servs., No. 18-00013V, 2022 WL 779666, at
*16 (Fed. Cl. Spec. Mstr. Feb. 15, 2022); Werning v. Sec’y of Health & Human Servs.,
No. 18-0267V, 2020 WL 5051154, at *10 (Fed. Cl. Spec. Mstr. July 27, 2020) (finding
that a petitioner satisfied the third SIRVA QIA criterion where there was a complaint of
radiating pain, but the petitioner was “diagnosed and treated solely for pain and limited
range of motion to her right shoulder”).
More specifically, in Chu, the Court of Federal Claims explained that the third
SIRVA criterion does not indicate that “a petitioner experiencing pain in the shoulder in
addition to pain elsewhere is foreclosed from entitlement because the pain is not limited
only to the shoulder.” 2026 WL 248647, at *29. Rather, “so long as petitioner has one
condition localized to the shoulder, SIRVA is satisfied.” Id. I have also previously
reached a similar conclusion. Grossman, 2022 WL 779666, at *16 (finding the third
SIRVA criterion met where “the evidence does not preponderate in favor of any finding
that petitioner had diagnostically meaningful complaints of pain or reduced range of
motion beyond her left shoulder”); see also Montana v. Sec’y of Health & Human
Servs., No. 20-873V, 2023 WL 7338887, at *11 (Fed. Cl. Spec. Mstr. Oct. 16, 2023)
(observing that “[t]here is no readily apparent reason to doubt that a person with a
preexisting right shoulder complaint could subsequently suffer an unrelated left shoulder
injury”). Although the Chu opinion includes some criticism of the prior Grossman
ruling,12 both Chu and Grossman quote the same language from the government’s
response to public comment, which indicates that the third SIRVA criterion is intended
to examine whether “the condition is localized to the shoulder.” Chu, 2026 WL 248647,
at *29; Grossman, 2022 WL 779666, at *15. The Grossman ruling, which found the
petitioner in that case entitled to compensation, interpreted this language as instructing
that symptoms beyond the affected shoulder are significant under the third criterion only
if they reflect “patterns of pain or reduced range of motion indicative of a contributing
etiology beyond the confines of a musculoskeletal injury to the affected shoulder,” i.e.,
12 Citing the “pro-claimant” nature of Vaccine Act proceedings, the Chu opinion takes specific issue with
the phrasing of the Grossman ruling that the third SIRVA criterion “guard[s] against compensating”
petitioners with certain clinical presentations. 2026 WL 248647, at *27-28. Within a discussion heading,
the Court queries “whether special masters are tasked to ‘guard against compensation.’” Id. at *27. It is
important to note the context for the language used in Grossman. “Conditions and injures that do not
meet the terms of the qualifications and aids to interpretation are not within the Table.” 42 C.F.R. §
100.3(a). The phrase “guard against compensating” as used in the Grossman ruling refers only to the
fact that the QAI themselves represent the contours (and limits) of the respondent’s expansion via his
rulemaking for SIRVA of the causal presumption available under the Vaccine Injury Table. See Durham
v. Sec’y of Health & Human Servs., No. 17-1899V, 2023 WL 3196229, at *12 (Fed. Cl. Spec. Mstr. May 2,
2023) (explaining that “[a]s I have indicated in prior cases, the government’s comment response reveals
that the third SIRVA criterion is intended to ensure that SIRVA claims are limited to instance in which ‘the
condition is localized to the shoulder injury in which the vaccine was administered.’ Thus, it is clear that
the gravamen of this requirement is to guard against compensating claims involving patterns of pain or
reduced range of motion indicative of a contributing etiology beyond the confines of a musculoskeletal
injury to the affected shoulder.” (emphasis omitted)).
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that the symptoms at issue constitute evidence that the condition at issue is not
localized to the shoulder. 2022 WL 779666, at *15.
Here, respondent has not argued that petitioner has failed to demonstrate a
reduction in his left shoulder range of motion. However, respondent argues that
petitioner’s physical therapy evaluation in particular demonstrated symptoms beyond his
left shoulder. (ECF No. 53, p. 9 (citing Ex. 4, p. 5).) Nonetheless, petitioner argues that
his treatment was focused on his left shoulder, stressing that he had MRI evidence
supporting left shoulder dysfunction and never had any diagnoses beyond his left
shoulder. (ECF No. 52, p. 13.) In light of the analyses under SIRVA criteria (i) and (iv),
I agree with petitioner. Respondent is correct that there were some complaints beyond
the left shoulder; however, in the face of the evidence otherwise indicating that
petitioner’s condition was attributed by his treating physicians entirely to glenohumeral
osteoarthritis, which is a condition localized to the shoulder, there no evidence in the
record identifying any medical or diagnostic significance to the incidental complaints of
symptoms beyond the left shoulder that would raise an issue on the third SIRVA
criterion.
For all these reasons, petitioner has met his burden of proof under the third
SIRVA criterion, though satisfaction of this element alone does not entitle petitioner to
compensation for a Table SIRVA.
e. SIRVA QAI (4) – No other condition or abnormality is present that would
explain the patient’s symptoms.
The fourth SIRVA criterion requires that “[n]o 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)(iv). This element of petitioner’s showing “requires consideration
of a petitioner’s medical condition as a whole.” Record v. Sec’y of Health & Human
Servs., 175 Fed. Cl. 673, 680 (2025). While the “other condition or abnormality” at
issue must qualify as an explanation for the petitioner’s symptoms, it “need not be a
better or more likely explanation.” French v. Sec’y of Health & Human Servs., No. 20-
0862V, 2023 WL 7128178, at *6 (Fed. Cl. Spec. Mstr. Sep. 27, 2023). Indeed, a
petitioner may fail to meet the fourth SIRVA criterion even where there is clinical
evidence of an alternative condition that falls short of a definitive diagnosis. Durham v.
Sec’y of Health & Human Servs., No. 17-1899V, 2023 WL 3196229, at *13-14 (Fed. Cl.
Spec. Mstr. May 2, 2023) (noting that the regulation cites “clinical evidence of” various
conditions). Ultimately, where the presence of another condition is apparent, petitioner
bears the burden of proving that the condition nonetheless “would not explain” his
symptoms. Id. at *14.
Here, petitioner’s claim fails under the fourth SIRVA criterion for essentially the
same reasons as discussed relative to the first criterion. Namely, petitioner’s treating
physicians attributed his symptoms to chronic glenohumeral osteoarthritis unrelated to
his vaccination. However, petitioner does advance some additional arguments specific
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to this element. And indeed, as I have previously observed, when an intrinsic shoulder
issue such as glenohumeral osteoarthritis is at issue as a potential alternative condition,
the fourth SIRVA criterion must be carefully examined to determine that the condition
fully explains the clinical presentation independent of vaccination. Lang, 2020 WL
7873272, at *13; see also Pulsipher v. Sec’y of Health & Human Servs., No. 21-2133V,
2025 WL 1364203, at *10 (Fed. Cl. Spec. Mstr. Apr. 24, 2025) (finding treating
physician diagnosis of osteoarthritis wholly explained the symptoms alleged to be a
SIRVA), mot. for rev. denied, 179 Fed. Cl. 268 (2025). Respondent does not defeat a
Table SIRVA claim “simply by noting the presence of shoulder dysfunction beyond
deltoid bursitis.” Grossmann, 2022 WL 779666, at *16. Moreover, petitioner does not
bear a burden of demonstrating that his symptoms are vaccine-caused in order to
demonstrate a Table SIRVA. Lang, 2020 WL 7973272, at *13 n.9. However, as
explained above, petitioner does need to demonstrate that his diagnosed glenohumeral
osteoarthritis “would not” explain his symptoms. Pulsipher, 2025 WL 1364203, at *10-
11; Durham, 2023 WL 3196229, at *14.
First, petitioner argues that glenohumeral osteoarthritis is not a better explanation
for his shoulder pain because it does not explain his new “sudden onset of severe left
shoulder pain with associated reduced range of motion” and, “[h]ad his symptoms been
related to his osteoarthritis, Petitioner would have described those symptoms as a more
gradual onset.” (ECF No. 52, p. 13.) This argument is significantly undermined by the
above analysis and conclusion relative to the second SIRVA criterion. Moreover,
neither the histories that petitioner provided to his physicians nor his written statements
for this case actually indicate that petitioner experienced a sudden rather than gradual
onset of worsening pain. Nor is his pattern of treatment-seeking obviously indicative of
a sudden onset of pain. While not necessarily dispositive of onset, a delay in seeking
treatment can be probative as to likely pain severity. E.g., Shields v. Sec’y of Health &
Human Servs., No. 20-1970V, 2024 WL 5261893, at *6 (Fed. Cl. Spec. Mstr. Nov. 26,
2024) (finding entitlement to compensation for a SIRVA despite a delay in seeking
treatment, but noting that “the delay speaks to the extent of Petitioner’s suffering – for
his injury appears to have been manageable, with his use of self-care for over three
months before professional medical assistance was sought”). Although it is clear that
petitioner does associate a worsening of his pain with his vaccination, petitioner
described his pain as progressing from normal post-vaccination arm soreness to severe
pain and reduced range of motion by the time he began to seek medical treatment,
which is more consistent with a gradual onset, given the length of time it took him to
seek such treatment. (Ex. 4, p. 5 (noting “Left deltoid pain initially, but now he has pain
from there all the way down to his left hand”); Ex. 1, p. 2 (describing the shoulder pain
as “progressive” and explaining that “[i]nitially, I believed the pain would resolve with
regular movement, and that my pain was typical for the type of vaccine administered,
but instead, my pain continued to increase”).)
In any event, even if onset of his pain was not gradual, he still has not presented
any evidence to suggest that the pattern of onset he experienced is inconsistent with his
diagnosed glenohumeral osteoarthritis. E.g., Pulsipher, 2025 WL 1364203, at *11
(explaining based on expert opinion that “the fact that petitioner’s pain first arose in the
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post-vaccination period is not dispositive. Although both experts agree that the
degenerative changes underlying osteoarthritis develop over years, onset of pain does
not necessarily likewise occur gradually.” (internal citations omitted)). As explained in
greater detail in the analysis of the first SIRVA criterion, although Dr. Oates sought to
reconcile petitioner’s report of a post-vaccination symptom onset with the rendered
diagnosis of osteoarthritis, Dr. Oates ultimately disclaimed the ability to attribute
petitioner’s osteoarthritis and related symptoms to the vaccination.13 Thus, Dr. Oates’s
medical records and opinion, when considered as a whole, do not preponderantly
establish that petitioner’s clinical presentation would not be explained by osteoarthritis
alone. And, again, petitioner has not presented an expert opinion to otherwise support
such a contention.
Second, petitioner argues that his MRI includes evidence of an acute
inflammatory injury. (ECF No. 52, p. 13.) Specifically, petitioner argues that the
findings of tendinosis of the supraspinatus tendon and synovitis are consistent with an
acute injury. (Id.) There are two issues with this argument. First, petitioner’s MRI was
not performed until December 7, 2020, more than a year after petitioner alleges his
SIRVA to have occurred and more than ten months since petitioner first began seeking
treatment for left shoulder pain. (Ex. 7, p. 5.) Accordingly, even accepting these
findings as evidence of an inflammatory process, they would not readily speak to the
acuteness of the inflammatory process. Second, and relatedly, contrary to what
petitioner argues, his treating orthopedist interpreted the MRI results as showing
“degenerative joint disease” with “no evidence of fluid collection or complication in the
deltoid muscle from the flu shot.” (Id.) In fact, he specifically concluded that “[t]he
findings on the MRI are consistent with chronic osteoarthritis of the left shoulder.” (Id.)
Dr. Oates was clearly aware of the other findings of tendinosis and synovitis when he
reached this conclusion, but did not note them to be significant.
Third, petitioner argues that “[i]t would be unusual for Petitioner, who is right
hand dominant, to only develop severe osteoarthritis in one shoulder and no symptoms
whatsoever in the opposite shoulder. Instead, Petitioner’s sudden, severe pain in his
left shoulder is better explained by an acute, vaccine injury.” (ECF No. 52, pp. 13-14.)
Again, this argument relies on a conception of a “sudden and acute” onset of pain that is
not preponderantly supported. But in any event, it does not ring true, given that
petitioner’s x-rays, MRI, and CT scan, all objectively confirmed the presence of
osteoarthritis in his left shoulder, even revealing “bone on bone” changes. (E.g., Ex. 7,
pp. 3, 5; Ex. 13, p. 9.) The health of petitioner’s right shoulder cannot negate the fact of
these objective findings. Nor does it readily imply that petitioner’s left shoulder pain was
vaccine-related, given that the pain pre-dated the vaccination, as discussed relative to
the first SIRVA criterion. Moreover, petitioner was diagnosed by both his primary care
provider (Ex. 2, p. 6) and his orthopedist (Ex. 7, pp. 3, 5) with osteoarthritis of the left
shoulder, and neither raised any concern regarding the health of petitioner’s right
shoulder as a reason to doubt the diagnosis.
13 Again, see n. 8, supra.
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Finally, petitioner argues that the fact that he experienced relief from his
cortisone injection supports the idea that petitioner’s shoulder condition “is more of an
inflammatory-type injury than osteoarthritis.” (ECF No. 52, p. 14.) This is not
persuasive because Dr. Oates specifically provided the cortisone injection as treatment
for arthritis. (Ex. 7, p. 5 (explaining “[i]n terms of treatment of the arthritis [I] explained
his long-term option includes the possibility of total shoulder replacement. I may be
able to give him some symptomatic relief with corticosteroid injection.”).)
For all these reasons, petitioner has not met his burden of proof under the fourth
SIRVA criterion.
f. Causation-in-fact and factor unrelated to vaccination
Petitioner has neither pleaded (ECF No. 1) nor argued (ECF No. 52) that
compensation should be awarded on a cause-in-fact basis. However, I briefly note in
the interest of completeness that the record evidence would not in any event support
such a claim.
To demonstrate causation-in-fact, petitioner would need to show by preponderant
evidence: (1) a medical theory causally connecting the vaccination and the injury; (2) a
logical sequence of cause and effect showing that the vaccination was the reason for
the injury; and (3) a showing of proximate temporal relationship between vaccination
and injury in order to prove causation-in-fact. Althen, 418 F.3d at 1278. Moreover,
such a claim must be supported by either medical records or by the opinion of a
competent physician. § 300aa-13(a)(1). That medical opinion must be based on sound
and reliable scientific or medical reasoning. Boatmon v. Sec’y of Health & Human
Servs., 941 F.3d 1351, 1359-60 (Fed. Cir. 2019).
As also explained with respect to the first SIRVA criterion, while Dr. Oates did not
entirely rule out petitioner’s vaccine as a contributing factor, there are several reasons
why Dr. Oates’s opinion is not persuasive. First, it was based on the false assumption
that petitioner’s shoulder had be previously asymptomatic.14 Especially given that Dr.
Oates was attempting to reconcile petitioner’s reported history with his separate opinion
that petitioner suffered osteoarthritis not caused by his vaccine, one cannot merely
assume that Dr. Oates’s opinion would be the same with knowledge of petitioner’s prior
history. Second, Dr. Oates’s opinion was both vague and tentative at best. To the
extent he ultimately suggested post-vaccinal muscle aches could lead to shoulder joint
pain, he did not provide any explanation that could support a theory of causation under
14 Dobrydnev v. Sec’y of Health & Human Servs., 566 F. App’x 976, 982-83 (Fed. Cir. 2014) (holding that
the special master was correct in noting that “[w]hen an expert assumes facts that are not supported by a
preponderance of the evidence, a finder of fact may properly reject the expert’s opinion” (alteration in
original) (quoting Dobrydneva v. Sec’y of Health & Human Servs., No. 04-1593V, 2010 WL 8106881, at
*9 n.12 (Fed. Cl. Spec. Mstr. Oct. 27, 2010), rev’d, 98 Fed. Cl. 190 (2011), rev’d sub nom. Dobrydnev v.
Sec’y of Health & Human Servs., 566 F. App’x 976 (Fed. Cir. 2014)) (citing Brooke Group Ltd. v. Brown &
Williamson Tobacco Corp., 509 U.S. 209, 242 (1993))); Bushnell v. Sec’y of Health & Human Servs., No.
02-1648V, 2015 WL 4099824, at *12 (Fed. Cl. Spec. Mstr. June 12, 2015) (finding that “because Dr.
Marks’ opinion is based on a false assumption regarding the onset of J.R.B.’s condition, and the incorrect
assumption of a ‘stepwise regression’ after each vaccine administration, it should not be credited”).
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Case 1:21-vv-00507-UNJ Document 57 Filed 03/27/26 Page 21 of 21
Althen prong one. (Ex. 7, p. 5.) And, third, his initial support for vaccine causation was
either softened, or even retracted, once petitioner’s MRI results were available.
As respondent stressed in his motion response, Dr. Oates initially stated that “I
think that his symptoms currently are mostly due to the arthritic change” and ultimately
that the vaccine “did not cause the underling chronic arthritis. I’ve explained to him that
this is in association in time but I cannot prove causation.” (ECF No. 53, p. 10 (quoting
Ex. 7, pp. 3, 5).) “Although probative, neither a mere showing of a proximate temporal
relationship between vaccination and injury, nor a simplistic elimination of other
potential causes of the injury suffices, without more, to meet the burden of showing
actual causation.” Althen, 418 F.3d at 1278. Thus, “[a] treating physician’s recognition
of a temporal relationship does not advance the analysis of causation.” Isaac v. Sec’y
of Health and Human Servs., No. 08-601V, 2012 WL 3609993, at *26 (Fed. Cl. Spec.
Mstr. July 30, 2012), mot. for rev. denied, 108 Fed. Cl. 743 (2013), aff’d per curiam, 540
F. App’x 999 (Fed. Cir. 2013).
Finally, I note that, even if one were to conclude that some of Dr. Oates’s
notations provide some support for petitioner’s claim when taken in isolation (under
either a Table or causation-in-fact analysis), respondent also argues that the record
evidence in any event preponderates as a whole in favor of the conclusion that
petitioner’s condition is due to a factor unrelated to vaccination, namely his chronic
osteoarthritis. (ECF No. 53, p. 10; § 300aa-13(a)(1)(B).) For all the reasons discussed
throughout this decision, I agree.
V. Conclusion
Petitioner clearly suffered and he does have my sympathy. However, for all the
reasons discussed above, there is not preponderant evidence of any compensable
injury under the standards set by this program. Therefore, pursuant to § 300aa-
12(d)(3)(A) and Vaccine Rule 10, this decision concludes that petitioner is not entitled to
an award of compensation. Absent a timely motion for review, the Clerk is directed to
enter judgment dismissing this case for insufficient proof in accordance with Vaccine
Rule 11(a).
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
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