VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00547
Package ID: USCOURTS-cofc-1_21-vv-00547
Petitioner: Anna Davis
Filed: 2021-07-15
Decided: 2025-08-19
Vaccine: influenza
Vaccination date: 2018-10-31
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Anna Davis filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on October 31, 2018. She claimed this was a Table injury. The case was filed on July 15, 2021. The respondent contested entitlement, arguing that Ms. Davis failed to demonstrate that she suffered the residual effects of her injury for more than six months after vaccination, as required by the Act. The medical records show Ms. Davis sought treatment for left shoulder pain two weeks after her vaccination. She reported improvement by January 23, 2019, and her range of motion had improved since her initial visit. She then had a gap in treatment for nearly seven months, during which time her symptoms and MRI findings changed, and she was assessed with a new diagnosis of adhesive capsulitis. The court found that Ms. Davis did not establish the statutory severity requirement because her treatment was limited to less than three months, she reported feeling better at her January 2019 visit, and she had a significant gap in treatment with subsequent changes in her condition. Therefore, the court dismissed her claim for insufficient evidence.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00547-0
Date issued/filed: 2025-08-19
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 07/15/2025) regarding 30 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:21-vv-00547-UNJ Document 34 Filed 08/19/25 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-547V
ANNA DAVIS, Chief Special Master Corcoran
Petitioner,
v. Filed: July 15, 2025
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On January 11, 2021, Anna Davis filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges a Table injury - that she suffered a shoulder injury
related to vaccine administration (“SIRVA”) after receiving an influenza (“flu”) vaccine on
October 31, 2018. Petition at 1. The case was assigned to the Special Processing Unit of
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-00547-UNJ Document 34 Filed 08/19/25 Page 2 of 11
the Office of Special Masters (the “SPU”) after it was activated from pre-assignment
review.
After a full review of the evidence, and for the reasons discussed below, I find that
Petitioner has not established by a preponderance of the evidence that she experienced
the residual effects of her injury for more than six months (the Act’s “severity
requirement”), and therefore she is not entitled to damages, and the claim must be
dismissed.
I. Relevant Procedural History
Over a year after the case was activated and assigned to SPU, Respondent
determined that he would defend the case, and thereafter filed his Rule 4(c) Report on
June 12, 2023. ECF No. 27. Respondent argues that Petitioner has failed to demonstrate
that she “suffered the residual effects or complications” of her alleged SIRVA injury “for
more than 6 months after the administration of [her flu] vaccine” as required under Section
11(c)(1)(D)(i) of the Act. ECF No. 27 at 5-6.
I subsequently set deadlines for the filing of briefs addressing this contested issue
(as well as Petitioner’s success in meeting the other SIRVA elements). Non-PDF Order
filed June 28, 2023. I further ordered Petitioner to file any additional evidence in support
of her claim. Id. On August 14, 2023, Petitioner filed a Motion for a Ruling on the Record
Regarding Entitlement. ECF No. 28. In her brief, Petitioner argued that she has
demonstrated that she suffered the residual effects of her injury for at least six months
and otherwise established entitlement to compensation for a Table SIRVA injury. ECF
No. 28 at 5-7. Respondent reacted to Petitioner’s brief on August 28, 2023, maintaining
that Petitioner has failed to meet the Act’s severity requirement and therefore her claim
must be dismissed. ECF No. 29.
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
2

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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. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” Murphy v. Sec’y of
Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,
1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd
per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as
incorrect the presumption that medical records are accurate and complete as to all the
patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The Court has also said that medical records may be outweighed by testimony
that is given later in time that is “consistent, clear, cogent, and compelling.” Camery v.
Sec’y of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of
Health & Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June
30, 1998). The credibility of the individual offering such fact testimony must also be
determined. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir.
2009); Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within
the special master’s discretion to determine whether to afford greater weight to medical
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).
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,3 a petitioner must
establish that she suffered an injury meeting the Table criteria, in which case causation
3 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of his injury for more than six months, died from his injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for his injury. Section 11(c)(1)(A)(B)(D)(E).
3

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is presumed, or an injury shown to be caused-in-fact by the vaccination she received.
Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying QAI are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
4

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III. Findings of Fact and Analysis
I have fully reviewed the evidence, including all medical records and affidavits, and
the parties’ briefing. I find most relevant the following:
• On October 31, 2018, Petitioner received a flu vaccine in her left shoulder at CVS
Pharmacy. Ex. 3 at 3.
• On November 14, 2018, two weeks after her vaccination, Petitioner was seen by
Joseph Yu, MD, at Total Sports Medicine, for left shoulder pain. Ex. 4 at 22.
Specifically, Petitioner complained of
left shoulder pain for the past 2 weeks. Pain was felt after a flu
vaccination. She felt the nurse gave the injection wrong because pain
was felt immediately and sharp and has not gone away. She has
intense soreness with hand ting[ling]. No pain[] medications are
required, no MRI has been performed[.] The pain is over the lateral
aspect of the shoulder and worse with elevation.
Id. On examination, Petitioner’s left shoulder was found to “elevate[] actively” to
140°, her external rotation was 60°, and her internal rotation was to “L1 with pain.”
Id. Her left shoulder strength was found to be “near full” and she had pain with
abduction. Id. She was assessed with “[a]cute pain of left shoulder” which Dr. Yu
stated was “[m]ost likely, . . . related to the injection.” Id. Dr. Yu stated that
Petitioner could have a “small muscle injury or perhaps more uncommonly, [a]
rotator cuff injury.” Id. Dr. Yu recommended Petitioner undergo an MRI if her pain
persisted for two to four more weeks. Id.
• After a two-month gap in treatment, Petitioner underwent an MRI on January 15,
2019. Ex. 5 at 7. The MRI history noted that Petitioner had “left shoulder pain and
numbness since flu shot October 10, 2018.” Id. The MRI Impression was
1. Teres minor rotator cuff tendinitis with acute edema in the
insertion of the cuff tendon. No definite fluid filled disruption.
2. Focal subdeltoid bursitis adjacent to the insertion of the teres
minor.
3. Focal osteitis with moderate hyperintense subcortical bone
marrow edema deep to the insertion of the teres minor tendon.
4. The above findings may be related to acute trauma, acute
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inflammation, or possibly acute infection. Recommend correlation
with clinical and laboratory findings.
Id.
• On January 23, 2019, Petitioner was seen Dr. Yu in follow-up to her MRI. Ex. 4 at
21. The record provides that Petitioner “recently had a traumatic flu vaccination.”
Id. On examination of her left shoulder, Dr. Yu stated that there was “tenderness
to palpation over the lateral aspect of the shoulder” and while Petitioner was “near
full strength” she still exhibited “pain with abduction.” Id. Petitioner’s range of
motion was improved from her prior visit, as she “elevate[d] actively to 150°”, while
her external rotation remained at 60°, and her internal rotation was to “T8 with less
pain.” Id. Dr. Yu continued to assess Petitioner with “[a]cute pain of left shoulder,”
but stated that her should was “feeling better at this point in time. If she wants, we
will get an MRI 6 months from now to make sure the bone edema goes away.” Id.
(emphasis added).
• There is a subsequent four and one-half months long treatment gap. On June 5,
2019, Petitioner was seen at the Emergency Department of Mountain View
Hospital with a chief complaint of a “[c]at bite.” Ex. 6 at 87. Petitioner reported she
returned home to her “dog attacking [her] cat” and when she intervened the cat
“then bit and scratched her multiple times to both hands/wrists, and left ankle area.”
Id. Petitioner stated she was unsure of the cat’s vaccination status and she
“denie[d] other symptoms or injuries.” Id. An upper extremity musculoskeletal
examination found that Petitioner had “[f]ull range of motion, [n]o swelling, . . . no
compartment syndrome.” Id. at 90. The exam notes document “[m]ultiple
superficial abrasions and superficial punctures” to Petitioner’s bilateral fingers,
hands, and wrists. Id. The record contains no mention of left shoulder pain or left
shoulder limitations. Petitioner’s wounds were cleaned and dressed with “topical
antibiotic ointment”, and Petitioner was discharged. Id. at 90-92.
• On June 6, 2019, Petitioner returned to the Emergency Department as she
observed increased redness around the scratches and bites from her cat. Ex. 6 at
40, 45. Petitioner injuries were treated, she received medications, and was advised
to follow-up with hand surgery. Id. at 45.
• On August 14, 2019 (and after a second, more than two month-long gap),
Petitioner had a follow-up appointment with Dr. Yu for her left shoulder. Ex. 4 at
20. Dr. Yu’s history states:
This patient returns today for evaluation and treatment of left
shoulder. Her shoulder was previously injured by a needle that went
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too far inside the shoulder. In the last 2 months, she has developed
pain which wakes her up at night. She has pain with movement of
the shoulder. There is no history of injury.
Id. (emphasis added). On examination, Petitioner’s left shoulder range of motion
was now reduced to an elevation of 120°, external rotation of 45° and her internal
rotation was to L5. Her strength was noted to be “difficult to assess secondary to
pain.” Id. Dr. Yu assessed Petitioner with left shoulder pain of “unspecified
chronicity” and planned to order an MRI to look at the increased signal around the
teres minor” (that Dr. Yu noted under a review of her “Imaging Studies” was on her
prior MRI and was “also present at the bone insertion”). Id.
• On September 25, 2019, Petitioner underwent another MRI exam – which was
compared to the results from her prior exam of January 15, 2019. Ex. 5 at 4. The
impression stated:
1. There is a type 2 downward sloping acromium.
2. The tendinitis described involving the teres minor tendon on prior
study has resolved.
3. Minimal fluid within the subacromial/subdeltoid bursa.
4. Fluid signal partially surrounding the long biceps tendon,
nonspecific but can be seen with tenosynovitis.
Id.
• On October 4, 2019, Petitioner was seen again by Dr. Yu to review her MRI from
September 25, 2019. Ex. 4 at 19. Dr. Yu noted that Petitioner’s recent MRI
revealed a “decreased signal around the teres minor” and “some fluid around the
biceps tendon.” Id. Petitioner’s left shoulder exam findings were unchanged from
her August 14, 2019 exam. Id. Dr. Yu assessed Petitioner with “[a]dhesive
capsulitis” and referred her to physical therapy “for active and passive range of
motion exercises.” Id.
• On October 9, 2019, Petitioner was seen for an initial evaluation for physical
therapy. Ex. 4 at 69. The “[s]ubjective” report of her current condition detailed a
chief complaint of “p[ain] in the L[eft] shoulder, difficulty sleeping, weakness,
decreased L[eft] shoulder ROM, and impaired ability to perform IADLS [or
instrumental activities of daily living].” Id. An onset date of October 9, 2019 (the
date of the appointment) was provided and in regard to her “Specific Injury”
Petitioner reported that she “received a flu shot on the supraspinatus insertion last
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October (2018) and since then her shoulder began to lose ROM and became
weaker.” Id.
• Thereafter, Petitioner continued to treat her left shoulder through at least January
2020. Ex. 4 at 39-40.
ANALYSIS
At issue in this case is whether Petitioner has satisfied the Vaccine Act’s “severity
requirement,” pursuant to which a petitioner demonstrate that they:
(i) suffered the residual effects or complications of such illness, disability,
injury, or condition for more than 6 months after the administration of the
vaccine, or (ii) died from the administration of the vaccine, or (iii) suffered
such illness, disability, injury or condition from the vaccine which resulted in
inpatient hospitalization and surgical intervention.
Section 11(c)(1)(D). To do so here, Petitioner would need to establish sequelae from her
alleged SIRVA at least through the end of April 2019 (assuming an onset of October 31,
2018).
After a careful review of the record, I find that Petitioner has not established
severity. Petitioner first sought care for left shoulder pain with Dr. Yu two weeks after her
flu vaccination on November 14, 2018. Ex. 4 at 22. Thereafter, she underwent an MRI
approximately two months later on January 15, 2019, and followed up with Dr. Yu on
January 23, 2019. Ex. 5 at 7; Ex. 4 at 21.
At her second visit with Dr. Yu on January 23, 2019, while Petitioner continued to
have some symptoms of shoulder pain and restriction, she reported that she was “feeling
better at this point in time.” Ex. 4 at 21 (emphasis added). Additionally, at the January 23rd
visit her ROM had improved from her first visit with Dr. Yu two weeks after her vaccination.
Ex. 4 at 21-22. Thereafter, Petitioner sought no further care for her shoulder until August
14, 2019.
Accordingly, Petitioner sought very limited treatment for her shoulder for less than
three months (84 days) following her vaccination. She thereafter reported improvement,
displayed no clinical signs of ROM limits, and sought no further shoulder treatment for
nearly seven months, or 202 days. Ex. at 20-21. This fact pattern does not establish
severity.
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Petitioner argues that the medical records demonstrate that she remained
symptomatic at her January 23, 2019 visit with Dr. Yu (prior to her gap in seeking
treatment for her shoulder) and that her return visit to Dr. Yu on August 14, 2019 was
noted to be a “f/u” visit regarding her left shoulder. Petitioner further argues that her
symptoms and limitations in range of motion remained the same between the two visits
with Dr. Yu – suggesting they were from the same injury. ECF No. 28 at 6-7 (citations
omitted).
While I agree that Petitioner’s symptoms were not entirely resolved at the time of
her January 2019 visit with Dr. Yu, that does not also mean that her symptoms persisted
for an additional 202 days. And while Petitioner suffered “tenderness to palpitation” of the
shoulder at both her January and August 2019 appointments, her other exam findings
had changed. Ex. 4 at 20-21. As Respondent points out, when Petitioner saw Dr. Yu again
on August 14, 2019, her range of motion deficits and strength testing were not the same
as they had been prior to her approximate seven-month gap in treatment. ECF No. 29 at
4-5. Specifically, Petitioner’s January 23, 2019 range of motion was noted to be
“elevate[d] actively to 150°”, while her external rotation was 60°, and her internal rotation
was to T8. Ex. 4 at 21. However, on August 14, 2019 her elevation was reduced to 120°,
her external rotation was now 45°, and her internal rotation was to L5. Ex. 4 at 20. Further,
on January 23, 2019, Petitioner’s strength testing revealed that she was “near full
strength” and had “pain with abduction.” Ex. 4 at 21. But by August 14, 2019, Dr. Yu stated
that Petitioner’s “strength [wa]s difficult to assess secondary to pain” – implying a
significant increase in pain as compared to her prior visit before her gap in treatment,
when she was found to have “near full strength.” Ex. 4 at 20-21.
Additionally, while the reason for Petitioner’s August 2019 appointment with Dr. Yu
is described as “f/u L[ef]t shoulder” and her history appropriately details that she was
“previously injured by a needle that went too far inside the shoulder”, the record goes on
to state “[i]n the last two months, she has developed pain which wakes her up at night” -
implying something new had developed in the prior two months. Id. at 20 (emphasis
added). Petitioner was assessed with left shoulder pain of “unspecified chronicity” and
Dr. Yu no longer linked his assessment to Petitioner’s vaccination. Id.
Additionally, Petitioner’s MRI reports before and after her treatment gap differ.
Petitioner’s MRI report in January 2019 revealed rotator cuff tendinitis “with acute edema
in the insertion of the cuff tendon,” bursitis, and “focal osteitis with moderate hyperintense
subcortical bone marrow edema deep to the insertion of the teres minor tendon.” Ex. 5 at
7. However, Petitioner’s September 2019 MRI revealed “a type 2 downward sloping
acromium,” “minimal fluid within the subacromial/subdeltoid bursa,” and a “[f]luid signal
partially surrounding the long biceps tendon” which was noted to be nonspecific, “but can
be seen with tenosynovitis.” Ex. 5 at 4. Additionally, her second MRI results suggested
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that the tendinitis seen on her prior MRI had resolved, her rotator cuff muscles and
tendons were normal, and “her marrow signal was unremarkable.” Id.4 Finally, as
Respondent notes in his brief, when Petitioner saw Dr. Yu on October 4, 2019 in follow-
up to her second MRI, he assessed her with a new diagnosis – adhesive capsulitis of the
left shoulder. ECF No. 29 at 5; Ex. 4 at 19.
In some cases, I have found the severity requirement met where a petitioner has
received a steroid injection shortly before the six-month mark but then does not seek care
for several months thereafter – suggesting no need for care until the ameliorative effects
of this treatment have worn off. See, e.g., Sawyer v. Sec’y of Health & Human Servs., No.
19-1473V, 2023 WL 4505208, at *5 (Fed. Cl. Spec. Mstr. June 12, 2023) (finding severity
requirement met where the petitioner had a four month gap in treatment after a steroid
injection, then returned to care reporting a return of her SIRVA-related pain after vigorous
cleaning); Cross v. Sec’y of Health & Human Servs., No. 19-1958V, 2023 WL 120783, at
*5-6 (Fed. Cl. Spec. Mstr. Jan. 6, 2023) (finding severity requirement met where the
petitioner received a steroid injection and then did not seek care again for six months,
stating that the “six-month gap in Petitioner’s treatment for her shoulder is at least partially
explained by the fact that she received a cortisone injection on October 22, 2018, for her
shoulder pain, which subsequently provided significant relief for a period of time”).
But Ms. Davis’s situation is not comparable. Of note, in this case Petitioner did not
receive a steroid injection or other pain alleviating treatment that would explain a
temporary relief in her shoulder pain, and therefore a subsequent gap in treatment. In this
case, the records do not show any documented symptoms for nearly seven months after
her January 23, 2019 appointment with Dr. Yu – at which time she had reported to Dr. Yu
that she was feeling better. Ex. 4 at 21. Dr. Yu recommended no further treatment other
than a possible repeat MRI after six months, if desired, “to make sure the bone edema
goes away” – presumptively because at that time, Petitioner was largely recovered albeit
with some residual symptoms. Ex. 4 at 21. And when Petitioner was evaluated after her
4 Petitioner also argues that her initial physical therapy in evaluation October 2019 (approximately one year
after her flu vaccination) describes her “specific injury” as a flu shot in 2018. ECF No. 28 at 7 (citing Ex. 4
at 69). However, I note that Petitioner’s physical therapy notation regarding her “specific injury” is contained
within the “Subjective” portion of that record – apparently based upon Petitioner’s own report that she
“received a flu shot on the supraspinatus insertion last October (2018) and since then her shoulder began
to lose ROM and became weaker.” Ex. 4 at 69. This same section of the record provides “Onset Date:
10/9/2019” (which was the date of the physical therapy evaluation itself), and states “Type of Injury: New
injury.” Id. These internal inconsistencies within the record’s subjective reporting render it difficult to rely
upon in support of either party’s position.
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gap in treatment, as discussed above, her physical exam and MRI findings had changed,
and she was assessed with a new diagnosis.5
Additionally, Petitioner has offered no testimony through a sworn declaration or
affidavit addressing her gap in treatment, or the alleged continuity of her shoulder pain
following her vaccination. In fact, the only declaration offered by Petitioner fails to address
the duration or sequela of her alleged injury at all. Ex. 1. Petitioner was offered an
opportunity to file any additional evidence in support of her claim, but filed only her Motion
for a Ruling on Entitlement. Scheduling Order (Non-PDF) issued June 28, 2023; ECF No.
28. In many cases, I have credited persuasive witness testimony as offering a credible
explanation for lengthy gaps in treatment, but that has not been provided here.
Conclusion
Based on the entire record, I find that Petitioner has failed to establish that
the statutory severity requirement is satisfied. Accordingly, this case is DISMISSED
for insufficient evidence. The Clerk of Court shall enter judgment accordingly.6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5 Additionally, I observe that Petitioner was seen at the emergency room on June 5 and 6, 2019, for cat
bites and scratches to her hands and wrists. At that time an upper extremity musculoskeletal examination
found that Petitioner had “[f]ull range of motion,” and Petitioner reported no shoulder pain. Ex. 6 at 87, 90,
45.
6 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
11