VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01003
Package ID: USCOURTS-cofc-1_21-vv-01003
Petitioner: Evelyn Gonzalez
Filed: 2021-02-26
Decided: 2024-11-08
Vaccine: meningococcal conjugate
Vaccination date: 2019-07-30
Condition: right shoulder injury related to vaccine administration (SIRVA)
Outcome: denied
Award amount USD: 

AI-assisted case summary:
Evelyn Gonzalez, an 18-year-old, filed a petition for compensation under the National Vaccine Injury Compensation Program on February 26, 2021, alleging that a meningococcal conjugate vaccine administered on July 30, 2019, caused a right shoulder injury related to vaccine administration (SIRVA). Ms. Gonzalez claimed immediate and persistent pain following the vaccination, which worsened as she began playing college volleyball. She sought treatment and was diagnosed with SIRVA, bursitis, and tendinopathy. The case proceeded as a Table claim, with the central issue being whether her injury met the Vaccine Act's severity requirement of lasting more than six months. Respondent argued that medical records from November 2019 indicated Ms. Gonzalez had returned to normal activity and had no complaints of shoulder pain, and that there was a significant gap in treatment until September 2020. Respondent further contended that renewed pain in September 2020 was likely due to a new athletic injury sustained while serving a volleyball. The Chief Special Master agreed, finding that Ms. Gonzalez's shoulder pain appeared to have resolved by August 2019 and that the subsequent pain was likely due to an athletic injury, thus failing to meet the six-month severity requirement. Ms. Gonzalez sought review of this decision, arguing that the Chief Special Master failed to consider all evidence, including her affidavit and an expert's opinion. The reviewing court affirmed the dismissal, finding the Chief Special Master's decision was not arbitrary and capricious, as he had considered the relevant evidence and rationally concluded that the injury did not meet the six-month severity requirement. The court noted that while Ms. Gonzalez claimed continued pain and sought treatment for other ailments, the contemporaneous medical records, particularly those from athletic trainers indicating a return to normal activity and a subsequent athletic injury, carried more weight. The court found that the evidence did not preponderate in favor of a finding that the SIRVA injury continued for more than six months.

Theory of causation field:
Petitioner Evelyn Gonzalez, age 18, received a meningococcal conjugate vaccine on July 30, 2019. She alleged a right shoulder injury related to vaccine administration (SIRVA). The case was filed under the National Vaccine Injury Compensation Program. The core issue was whether the injury met the Vaccine Act's severity requirement of lasting more than six months. Respondent argued that medical records from November 2019 indicated a return to normal activity and no complaints of shoulder pain, with a subsequent gap in treatment until September 2020, and that renewed pain in September 2020 was likely due to an athletic injury. The Chief Special Master dismissed the petition, finding the injury did not persist for more than six months, a finding affirmed by the reviewing court. The court found the Chief Special Master's decision was not arbitrary and capricious, giving weight to contemporaneous medical records indicating a return to normal activity and a subsequent athletic injury, despite petitioner's affidavit and Dr. Peter Chalmers' opinion suggesting continued symptoms. No specific mechanism of injury was detailed in the public decision. The petition was denied.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-01003-0
Date issued/filed: 2024-06-07
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 05/06/2024) regarding 34 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made.
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Case 1:21-vv-01003-KCD Document 37 Filed 06/07/24 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1003V
EVELYN GONZALEZ,
Chief Special Master Corcoran
Petitioner,
v.
Filed: May 6, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner.
James Vincent Lopez, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DISMISSING PETITION1
On June 13, 2022, Evelyn Gonzalez filed an amended petition2 for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3
(the “Vaccine Act”). Petitioner alleges that she suffered a right shoulder injury related to
vaccine administration (“SIRVA”) as a result of a meningococcal conjugate vaccine she
received on July 30, 2019. Amended Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the 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 Petitioner filed the original petition on February 26, 2021.
3 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:21-vv-01003-KCD Document 37 Filed 06/07/24 Page 2 of 11
For the reasons discussed below, I find that Petitioner cannot show she suffered
the residual effects of her right-sided shoulder injury for more than six months – and
therefore the Petition warrants dismissal, since all Vaccine Act claims must meet the
severity requirement.
I. Relevant Procedural History
Ms. Gonzalez filed the first version of her petition and medical record exhibits on
February 26, 2021, with an amended Petition in June 2022. ECF Nos. 1, 22-23. On
November 7, 2022, after reviewing the records in the case, Respondent filed his report
pursuant to Vaccine Rule 4(c) and a Motion to Dismiss. ECF Nos. 28-29.
Respondent argued therein that Petitioner had not shown that the symptoms from
her injury lasted for more than six months. Rule 4(c) Report at 10. Respondent noted that
just three and a half months after vaccination, Ms. Gonzalez was evaluated by athletic
trainer Olivia Hartman, ATC, at NEU Sports Medicine. Ex. 3 at 2. The athletic trainer noted
Petitioner had “been back to normal activity” since August 24, 2019, and had “not
complained of any shoulder pain or decreased ROM.” Id. The treatment note related to
Petitioner’s shoulder was closed at that time. Id. Then for the next approximately 10
months, from November 12, 2019, to September 30, 2020, there is no record of Petitioner
receiving treatment for her right shoulder.
Additionally, Respondent argued, onset of Ms. Gonzalez’s right shoulder pain in
September 2020 was not SIRVA-related, but rather the result of a new injury that occurred
while serving a volleyball at practice. Ex. 3 at 13. Thus, Petitioner’s shoulder pain
appeared to have resolved in the summer of 2019 – and did not persist for the requisite
six months after vaccination to establish the severity requirement under 42 U.S.C. §
300aa-11(c)(D)(i). Id.
Petitioner filed a response to the Motion to Dismiss (“Response”) along with an
affidavit from one of Ms. Gonzalez’s treating providers, Dr. Peter Chalmers, who stated
that he believed Petitioner’s vaccine contributed to “some of the symptoms” she reported
in early 2021. Ex. 14 at 1.
The parties have briefed the issues in dispute (Motion to Dismiss and Rule 4(c)
Report “Motion” and “Response”) and have requested that I issue a ruling. My findings
are presented below.
2

Case 1:21-vv-01003-KCD Document 37 Filed 06/07/24 Page 3 of 11
II. Issue
At issue is whether Petitioner continued to suffer the residual effects of the SIRVA
for more than six months. 42 C.F.R. § 100.3(a) XV.B. (Meningococcal vaccines); Section
11(c)(1)(D)(i) (statutory six-month requirement).
III. Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation,
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. “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 United States Court of Federal Claims has outlined four possible explanations
for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
3

Case 1:21-vv-01003-KCD Document 37 Filed 06/07/24 Page 4 of 11
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).
IV. Finding of Fact
I make the findings after a complete review of the record to include all medical
records, affidavits, Respondent’s Rule 4(c) report, and additional evidence filed.
Specifically, I base the findings on the following evidence:
 Petitioner’s medical history is unremarkable for any shoulder symptoms or
injuries prior to the date of vaccination. See generally Ex. 10.
 Petitioner (age 18) received an intramuscular meningococcal conjugate
vaccine on July 30, 2019, at the office of her primary care provider located
in Solana Beach, California. Ex. 10 at 190-95. The vaccination record states
that the vaccine was administered in her right shoulder. Id. She received
the vaccination in preparation for attending college as an incoming
freshman at Northeastern University in Boston, Massachusetts. Ex. 3 at 2;
Ex. 1 at 5.
 Fifteen days after vaccination, on August 14, 2019, Ms. Gonzalez presented
to sports medicine specialist Dr. Michael Beasley at the Boston Children’s
Hospital, Sports Medicine Division for an initial evaluation for “[r]ight
shoulder pain.” Ex. 2 at 4-5. Petitioner reported that “[s]he felt that the
injection was higher than normal and had immediate pain upon
administration of the injection. Since then[,], her pain [h]as persisted and
gotten worse since she started playing volleyball at school…” Id. at 4. On
exam, Ms. Gonzalez had tenderness to palpation of her right deltoid and
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pain with abduction, flexion, and internal rotation of her right shoulder. Id. at
5. Dr. Beasley’s assessment stated “[w]e suspect that her pain is likely
secondary to shoulder injury related to vaccine administration (SIRVA)[,]
which is a well[-]recognized inflammatory response noted after
administration of vaccines higher than normal in the deltoid region. . . . She
does have some evidence of a possible nerve irritation from the
administration of the vaccine given her symptoms of numbness and
tingling.” Id. He ordered an MRI. Id.
 On August 14, 2019, Ms. Gonzalez underwent an MRI of her right deltoid
that showed a “[f]ocal complex fluid collection within the subdeltoid bursa,
consistent with inflammatory bursitis,” and “[l]ow grade supraspinatus,
infraspinatus, and subscapularis tendinopathy.” Ex. 2 at 7. Dr. Beasley
reviewed the MRI that day and noted it “does seem to show subdeltoid
bursitis likely consistent with an injury related to her shoulder immunization,
and without significant evidence of other structural concerns.” Id. at 5.
 On August 15, 2019, 16 days after vaccination, Ms. Gonzalez was
evaluated by athletic trainer Kate Delude at Northeastern, who noted that
“Patient is a freshman volleyball athlete. Prior to coming to campus[,] she
received her mandatory meningitis [sic] immunization on 7/30/19. The
operator injected her hitting shoulder. She reported that after the injection
she ha[d] almost zero ROM in her shoulder. She now has almost full ROM
but has pain. She sat out the first day of practice then played the next 3
days.” Ex. 2 at 7.
 In an email from Dr. Beasley to the athletic trainer, Dr. Beasley advised that
Ms. Gonzalez’s shoulder “looks as suspected like just inflammation from
injection of subdeltoid bursa, surrounding tissue.” Id. Dr. Beasley’s
recommendation was to limit Petitioner, as much as possible, from
overhead activity and treat with ice. Id. The athletic trainer’s plan was for
Ms. Gonzalez to “not participate in volleyball activities” and engage in bike
conditioning and lower body lifting. Id.
 On August 21, 2019, 22 days after vaccination, Ms. Delude again evaluated
Ms. Gonzalez. Ex. 3 at 2. Ms. Gonzalez had been able to play volleyball
that day with the restriction of no overhead activity. Id. She reported “one
instance where she had pain but overall [said] she felt really good,” with “no
pain after practice.” Id. The plan was to participate in practice again without
overhead activity. Id.
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 On November 12, 2019, approximately three and a half months after
vaccination, Ms. Gonzalez was evaluated by athletic trainer Olivia Hartman,
ATC, at Northeastern University Sports Medicine. Ex. 3 at 2. Hs. Hartman
noted, “Athlete has been back to normal activity since I came on as the
volleyball athletic trainer 8/24. Athlete has not complained of any shoulder
pain or decreased ROM. Note will be closed at this time.” Id.
 For the next approximately 10 months, from November 12, 2019, to
September 30, 2020, there is no record of Ms. Gonzalez receiving treatment
of her right shoulder. In her affidavit, Ms. Gonzalez stated that “[w]hen [she]
returned to [NEU] in January 2020 after the holiday break, [she] reported
right shoulder pain, weakness and limited range of motion to [her] coach
and trainers.” Ex. 1 at 3. She further stated in her affidavit that when she
returned home in March 2020, due to Covid-19, she had “right shoulder pain
when reaching, pulling, or lifting.” Id. She stated she took over-the-counter
medications for pain, stretched, and iced her shoulder, and did home
physical therapy. During this ten-month period, Ms. Gonzalez also had
periodic follow ups with her primary care provider related to monitoring of
isotretinoin therapy for acne and did not report any right shoulder issues.
Ex. 10 at 141-88.
 On September 30, 2020, approximately 14 months after vaccination, on
September 30, 2020, Ms. Gonzalez had a virtual consultation with athletic
trainer Mike McKenney, MS, ATC, at Northeastern University Sports
Medicine. Ex. 3 at 13. Mr. McKenney noted Petitioner’s history as follows:
“[she] believes she hurt her [r]ight shoulder last night during practice, her
serving shoulder. She describes a very abbreviated warm-up prior to full
serves that consisted of throwing the ball 3 times to a partner and then going
into full serves. She was able to demonstrate almost full shoulder flexion
and abduction overhead, but discomfort was present. . . . She has not been
keeping up with the preventative exercises they were taught last year, but I
advised she could continue with those if they were below the shoulder and
not past neutral in [internal rotation]/[external rotation].” Petitioner was
advised to follow up the next day for an in-person evaluation. Id.
 On October 1, 2020, Ms. Gonzalez was evaluated in person by Mr.
McKenney at Northeastern Sports Medicine for right shoulder pain. Ex. 3 at
12-13. On exam, she had full range of motion, but posterior pain with
external rotation and flexion past 90 degrees. Id. There was no pain with
palpation. Id. There was weakness with external rotation, but no other major
strength deficit. Id. The assessment was that Petitioner “may have strained
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the [internal rotation] group of her [rotator cuff].” Id. Ms. Gonzalez was
advised regarding a home exercise program, and overhead volleyball hitting
was restricted. Id.
 From October 1, 2020, through November 11, 2020, Ms. Gonzalez
continued to participate in volleyball practice, with activity restrictions, and
received rehabilitation and therapy from the athletic trainers at Northeastern
University Sports Medicine. Ex. 3 at 12.
 On November 17, 2020, Ms. Gonzalez returned to Dr. Corrado, who
suspected a “labral or rotator cuff pathology” and ordered an MRI
arthrogram. Ex. 3 at 12.
 On November 30, 2020, Ms. Gonzalez underwent a right shoulder MRI
arthrogram at Tufts Medical Center that showed a “[f]ocal full thickness tear
of the anterior fibers of the supraspinatus muscle” and a “[l]ow-grade
articular surface fraying of the posterior fibers of the supraspinatus.” Ex. 2
at 11; Ex. 7 at 6-7.
 On December 11, 2020, Ms. Gonzalez was evaluated by athletic trainer
Christen Chiesa at Northeastern University Sports Medicine. Ex. 3 at 10-11.
Petitioner had a history of “[right] shoulder pain since late September.” Id.
Ms. Gonzalez reported that “she can think of a couple instances where this
could have occurred, one of which was serving the volleyball.” Id. Petitioner
had pain rated 1-7/10. Id. Her past medical history related to her shoulder
included “subacromial bursitis.” Id.
 Approximately 16 ½ months after vaccination, on December 14, 2020,
orthopedic surgeon Dr. Ramappa evaluated Ms. Gonzalez at Beth Israel
Deaconess Medical Center. Ex. 5 at 10-12. Dr. Ramappa noted Petitioner’s
history: 20 year[-]old healthy volleyball player who presents with [right]
shoulder pain that began in September 2020. She experienced pain during
a serve and has since had difficulty controlling her arm. Her shoulder pain
and weakness has worsened since the onset of the injury. She took 1.5
[weeks] off from volleyball, but she has been actively playing with her pain.
She has not performed formal PT. Her pain is worsened with overhead
activity and washing her hair. She has a history of shoulder bursitis. Id. On
exam, Ms. Gonzalez had full ROM and strength, with pain and positive
impingement signs. Id. Dr. Ramappa noted the prior MRI demonstrated “a
partial thickness supraspinatus tear with intratendinous cyst.” Id. The
assessment was “[right] shoulder impingement, partial thickness
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[supraspinatus] tear.” Id. Dr. Ramappa and petitioner discussed different
treatment options, and Petitioner elected to proceed with PT. Id.
 From December 18, 2020, to January 30, 2021, Petitioner participated in
additional rehabilitation and therapy from the athletic trainers at NEU Sports
Medicine. Ex. 3 at 3-9.
 On January 25, 2021, Ms. Gonzalez had a telephone consultation with Dr.
Ramappa and reported continued pain in her shoulder despite attending
PT. Ex. 5 at 13. Petitioner advised that she would follow up to discuss
treatment options. Id.
 Over a year and a half after vaccination, on February 4, 2021, Petitioner
had a telehealth consultation with Peter Chalmers, M.D., a shoulder, and
elbow specialist at the University of Utah Health Orthopedics Center. Ex. 6
at 154-56. Dr. Chalmers noted Petitioner’s right shoulder pain and stiffness
“began in October [2020] associated with volleyball.” Id. He also noted Ms.
Gonzalez “had some pain before due to a (meningococcal) vaccine in
August of 2019.” Id. Petitioner denied “pain radiating down to the hand, neck
pain, or numbness.” Id. The assessment was a “right partial thickness cuff
tear and biceps tendonitis.” Id. Petitioner elected to proceed with surgery.
Id.
 On February 12, 2021, Ms. Gonzalez underwent a right shoulder
arthroscopic debridement and biceps tenodesis, performed by Dr.
Chalmers. Ex. 6 at 49-57. Dr. Chalmers’ operative findings included a type
II superior labrum from anterior to posterior (“SLAP”) tear and
posterosuperior fraying consistent with internal impingement. Id. There was
also significant tenosynovitis in the humeral groove of the biceps tendon.
Id.
 On February 26, 2021, two weeks after surgery, Ms. Gonzalez had her initial
post-operative PT session. Pet. Ex. 6 at 29-34. At this session, Petitioner
reported the following history: “[Patient] [r]eports over the past 1.5 years []
off and on [right] shoulder pain associated with collegiate volleyball.
[Patient] [r]eports an injection, rest through summer, injury in Oct 2020 with
a serve and progressive symptoms of pain and episodes of drastic pain.”
Id. at 29.
 On March 4 and 12, 2021, Petitioner attended additional post-surgical PT
sessions at the University of Utah Health Orthopedics Center. Ex. 6 at 15-
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25. On March 4, 2021, Petitioner reported she felt like she had “turned a
corner.” Id. at 22. On March 12, 2021, she reported “feeling better each
week” and having no problems with her HEP. Id. at 15.
 On April 4, 2021, Petitioner saw Dr. Chalmers for a post-operative
consultation. Ex. 6 at 9-11. Petitioner was “[d]oing great so far” and her pain
was well controlled. Id.
 On April 26, 2021, Petitioner had an initial evaluation for PT at The Training
Room in California. Ex. 11 at 107-11. Her reported pain was 0-5/10. Id. The
goal was to return to volleyball during the August 2021 preseason. Id.
 On May 20, 2021, three months after surgery, Ms. Gonzalez had a post-
operative telehealth consultation with Dr. Chalmers regarding her right
shoulder. Ex. 6 at 3-4. Petitioner was “[d]oing great” and her “pre-operative
pain [was] resolved.” Id.
 According to the most recent records filed as of July 17, 2021, Petitioner
was still in PT at The Training Room, having completed 29 sessions. X. 11
at 20-22.
V. Analysis - Six Month Sequela
In order to state a claim under the Vaccine Act, a petitioner must establish the
“severity” requirement demonstrating that the vaccinee has either:
(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.
§11(c)(1)(D).
In this case, to satisfy the Vaccine Act’s severity requirement, Ms. Gonzalez must
show that she suffered symptoms of her alleged SIRVA beyond January 30, 2020.
Respondent argues that Petitioner has failed to meet her burden on this point. In support,
Respondent notes that on November 12, 2019 (approximately three and a half months
after vaccination), Ms. Gonzalez was evaluated by athletic trainer Olivia Hartman, ATC,
at NEU Sports Medicine who stated that Petitioner had “been back to normal activity”
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since August 24, 2019, and had “not complained of any shoulder pain or decreased
ROM.” Id. The treatment note related to Petitioner’s shoulder was closed at this time.
Response at 9-10. Then for the next approximately ten months (from November 12, 2019,
to September 30, 2020 – meaning past the severity “cutoff of late January 2020) there is
no record of Petitioner receiving treatment for her right shoulder. Id. In effect, as
Respondent argues, Ms. Gonzalez’s shoulder pain appears to have mostly resolved by
August 2019. She thereafter had minimal treatment through November 2019, when she
ceased medical care for the injury. During this time, Petitioner actively participated in the
“intense condition” associated with playing Division I college volleyball. Ex. 9 at 19.
Complaints of renewed pain after September 2020 seem more likely the product
of an athletic injury. On September 30, 2020, for example, Petitioner’s athletic trainer
noted that Ms. Gonzalez “believes she hurt her [r]ight shoulder last night during practice,
her serving shoulder. . . . She has not been keeping up with the preventative exercises
they were taught last year.” Ex. 3 at 13. From that date forward, Ms. Gonzalez’s right
shoulder symptoms are consistently associated with playing volleyball. Ex. 3 at 13 (On
October 1, 2020, athletic trainer Mike McKenney’s assessment was that Petitioner “may
have strained the [internal rotation] group of her [rotator cuff].”); Ex. 3 at 10-11 (On
December 11, 2020, athletic trainer Christen Chiesa noted Petitioner’s history of “[right]
shoulder pain since late September,” and Petitioner reported “she can think of a couple
instances where this could have occurred, one of which was serving the volleyball”); Ex.
5 at 10-12 (On December 14, 2020, orthopedic surgeon Dr. Ramappa noted Petitioner’s
history of “[right] shoulder pain that began in September 2020,” which was attributed to a
serve); Ex. 6 at 154-56 (On February 4, 2021, shoulder and elbow specialist Dr. Chalmers
noted Petitioner’s history of right shoulder pain and stiffness that “began in October [sic]
[2020] associated with volley[]ball”); id. at 29-34 (On February 26, 2021, at an initial PT
evaluation, Petitioner reported an “injury in Oct[ober] [sic] 2020 with a serve and
progressive symptoms of pain and episodes of drastic pain”). There is no mention in any
of these notes of a vaccine-related injury. Thus, the initial 10-month treatment gap from
November 12, 2019, to September 30, 2020, is the most pertinent period of time for
evaluation of the six-month severity requirement.
In many cases, a treatment gap that overlaps with the deadline for the six-month
severity “endpoint,” measured from the date of onset, does not bar a finding of severity.
See e.g., Law v. Sec'y of Health & Hum. Servs., No. 21-0699V, 2023 WL 2641502, at *5
(Fed. Cl. Mar. 27, 2023); Kilgore v. Sec'y of Health & Hum. Servs., No. 21-1390V, 2023
WL 7130175, at *6 (Fed. Cl. Sept. 29, 2023); Grieshop v. Sec'y of Health & Human Servs.,
No. 14-119, 2015 WL 4557620, at *5–6 (Fed. Cl. Spec. Mstr. June 5, 2015). A failure to
seek treatment during such a gap does not inherently mean an individual’s SIRVA-related
pain has ceased, since claimants often live with the pain, based upon the expectation it
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will subside, or because of the reasonable desire to avoid unnecessary treatment.
Claimants also may in that timeframe see medical professionals for unrelated concerns,
where they would not logically mention an unrelated physical issue. See e.g., Rowe v.
Sec'y of Health & Hum. Servs., No. 17-1182V, 2020 WL 6281742, at *3 (Fed. Cl. Sept.
24, 2020). And the length of the gap also bears on how much weight it should be given.
Here, however, the mix of evidence preponderates against a favorable severity
finding. In particular, I give weight to the fact that the Petitioner was able to engage in a
strenuous exercise program associated with playing college volleyball despite her pain
(activity that would reasonably be expected to prove difficult to perform for anyone, but
especially an individual with a persistent shoulder injury). Moreover, after this training,
Petitioner obtained treatment on several occasions for pain impacting her elsewhere in
her body – but not for her shoulder. See e.g., Ex. 10 at 141-88. This not only suggests
the shoulder was not then an issue, but also that she had the opportunity to seek
treatment – and did so readily for issues bothering her. And finally, the gap itself, and
what transpired during it, allows for other factors to have caused the pain to return –
independent of the vaccination. All of the above is unsupportive of severity in this case.
Accordingly, the record does not preponderate in favor of the conclusion that
Petitioner’s SIRVA likely continued during this gap – and thus Petitioner cannot establish
that she suffered the residual effects of her left shoulder injury for more than six months.
VI. CONCLUSION
Under the Vaccine Act, to be compensable, the vaccine injury alleged must either
persist for more than six months or require inpatient hospitalization and surgical
intervention. § 11(c)(1)(D)(i). In this case, the record does not contain medical records or
a medical opinion sufficient to demonstrate that Petitioner is entitled to compensation.
For these reasons, Petitioner’s claim for compensation is denied and this case is
dismissed. The Clerk shall enter judgment accordingly.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4 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

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_21-vv-01003-1
Date issued/filed: 2024-11-08
Pages: 19
Docket text: JUDGE VACCINE REPORTED OPINION (PUBLIC VERSION) re: 39 Order on Motion for Review, Judge Vaccine Order/Opinion. Signed by Judge Kathryn C. Davis. (jg) Service on parties made.
--------------------------------------------------------------------------------
Case 1:21-vv-01003-KCD Document 41 Filed 11/08/24 Page 1 of 19
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
___________________________________
)
EVELYN GONZALEZ, )
)
Petitioner, ) No. 21-1003
)
v. ) Filed: October 24, 2024
)
SECRETARY OF HEALTH AND ) Re-issued: November 8, 2024*
HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
OPINION AND ORDER
Petitioner Evelyn Gonzalez seeks review of a decision dismissing her petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10,
et seq. (“Vaccine Act”). Ms. Gonzalez alleges that she suffered a shoulder injury caused by the
administration of a meningococcal vaccine (“meningitis vaccine”). On May 6, 2024, the Chief
Special Master denied Ms. Gonzalez’s claim and dismissed her petition, finding that she had not
established by a preponderance of evidence that her injury lasted long enough to meet the
severity requirement under the Vaccine Act. In accordance with Rules 23 and 24 of the Vaccine
Rules of the United States Court of Federal Claims (“Vaccine Rules”), Ms. Gonzalez filed a
Motion for Review of the Chief Special Master’s Decision Dismissing Petition. For the reasons
discussed below, the Chief Special Master’s decision was not arbitrary and capricious or contrary
to law. Therefore, the Court DENIES Ms. Gonzalez’s Motion.
* The Court issued this opinion under seal on October 24, 2024, and directed the parties
to file any proposed redactions by November 7, 2024. As the parties do not propose any
redactions, the Court reissues the opinion publicly in full.

Case 1:21-vv-01003-KCD Document 41 Filed 11/08/24 Page 2 of 19
I. BACKGROUND
A. Ms. Gonzalez’s Medical History, Onset of Symptoms, and Diagnosis
On July 30, 2019, when Ms. Gonzalez was 18 years old, she received a meningitis
vaccine in her right deltoid.1 Pet’r’s Ex. 10 at 193, ECF No. 14-1. In an affidavit, she states that
before receiving the vaccination, she had “no history of pain, inflammation or dysfunction in
[her] right shoulder.” Pet’r’s Ex. 1 ¶ 6, ECF No. 1-3. At the time of vaccination, she had been
preparing for her freshman year at Northeastern University in Boston, where she would be a
member of the women’s volleyball team. Id. ¶ 9. Ms. Gonzalez claims that upon receiving the
vaccine, she felt “immediate severe pain” in her right shoulder that was so acute she thought she
would faint. Id. ¶ 5. She reports that she was unable to sleep that night due to the pain. Id. ¶ 7.
When Ms. Gonzalez arrived at Northeastern, she missed the first several volleyball
practices due to shoulder pain. Id. ¶¶ 10–11. On August 14, 2019, she visited the team
physician at Boston Children’s Hospital and was seen by Dr. Michael Beasley. Id. ¶ 12. Dr.
Beasley examined her right shoulder and ordered an MRI. Id. Based on the examination, he
suspected that her shoulder was inflamed due to “shoulder injury related to vaccine
administration (SIRVA),” which is “a well recognized inflammatory response noted after
administration of vaccines higher than normal in the deltoid region.” Pet’r’s Ex. 2 at 5, ECF No.
1-4. According to an MRI specialist, the MRI scan demonstrated a “focal fluid collection deep
to the lateral aspect of the deltoid” that appeared to be “within the subdeltoid bursa.” Id. at 7.
The specialist also noted that the right shoulder had “mild to moderate tendinosis of the
supraspinatus tendon, without a partial or full thickness tear,” as well as “mild tendinosis of the
1 Ms. Gonzalez also received a human papillomavirus (“HPV”) vaccine on the same date.
Pet’r’s Ex. 10 at 193, ECF No. 14-1. The HPV vaccine, however, is not at issue in this case.
2

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infraspinatus and subscapularis tendons.”2 Id. Dr. Beasley recommended that Ms. Gonzalez
continue physical therapy with the team trainers and refrain from overhead activity. ECF No. 1-
3 ¶ 12.
B. Initial Treatment, Continued Symptoms, and Follow-up Treatment
Following Dr. Beasley’s instructions, Ms. Gonzalez returned to the team trainers and
began therapy exercises. Id. ¶ 14. On August 21, 2019, 22 days after vaccination, she returned
to practice but did not do any overhead activity. Id. ¶ 15. That same day, team trainer Kate
Delude evaluated Ms. Gonzalez. Pet’r’s Ex. 3 at 2, ECF No. 1-5. The trainer noted that Ms.
Gonzalez participated in volleyball practice that day and reported “one instance where she had
pain but overall [said] she felt really good,” with “no pain after practice.” Id. By the end of
August, her pain had improved slightly, and she played volleyball and participated in practices
“despite continued pain and discomfort.” ECF No. 1-3 ¶ 16. Toward the end of the season,
however, Ms. Gonzalez stated that her shoulder weakened and became “more and more painful.”
Id. Even so, on November 12, 2019, approximately three and a half months after vaccination,
team trainer Olivia Hartman evaluated Ms. Gonzalez and noted, “Athlete has been back to
normal activity since I came on as the volleyball athletic trainer 8/24. Athlete has not
complained of any shoulder pain or decreased [range of motion].” ECF No. 1-5 at 2.
The season ended later that month, and Ms. Gonzalez returned home to Solana Beach,
California, for winter break. Pet’r’s Ex. 12 ¶ 10, ECF No. 31-1. While home, Ms. Gonzalez
visited her primary care doctor for additional vaccines but, according to Ms. Gonzalez, requested
that she receive them in her thigh because her right shoulder was still in pain. ECF No. 14-1 at
2 A “bursa” is defined as “a sac or sac-like cavity filled with a viscid fluid and situated at
places in the tissues at which friction would otherwise develop.” Bursa, Dorland’s Medical
Dictionary 258 (33d ed. 2020). “Tendinosis” is defined as “any pathologic condition of a
tendon.” Id. at 1852.
3

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65; ECF No. 31-1 ¶ 10. Ms. Gonzalez further reports that when she returned to Northeastern in
January 2020, she told the team trainers that she was still experiencing pain and discomfort.
ECF No. 31-1 ¶ 11. She planned to perform daily resistance band exercises to strengthen her
shoulder. Id. When Northeastern’s campus closed in March 2020 due to the COVID-19
pandemic, Ms. Gonzalez again returned home to California. Id. ¶ 12. While home, she did not
play volleyball. Id. She instead rested and performed a daily stretching, icing, and heating
regimen. Id.
Returning to campus in August 2020, she played volleyball until the end of September.
Id. ¶¶ 14–15. However, on September 29, 2020, she informed the trainers that she felt a “sharp
pain” in her right shoulder during team service drills. Id. ¶ 15. The trainers worked with her on
therapy and stretching exercises for two months before recommending that she see the team
physician at Boston Children’s Hospital. Id. The team physician, Dr. Gian-Michel Corrado,
examined Ms. Gonzalez, noting that her “pain began insidiously in the context of being a hitting
volleyball player.” Pet’r’s Ex. 13 at 13, ECF No. 31-2. Of the “multitude” of possible causes,
“the most concerning” to Dr. Corrado was a “labral tear or rotator cuff tear.” Id. Dr. Corrado
ordered an MRI. Id.; see ECF No. 1-3 ¶ 22. At a follow-up appointment on December 7, 2020,
Dr. Corrado explained that the MRI showed a rotator cuff tear and recommended that Ms.
Gonzalez see a shoulder specialist. Id. ¶ 24; see ECF No. 1-4 at 13; ECF No. 31-2 at 11.
Ms. Gonzalez then saw specialist Dr. Arun Ramappa at Beth Israel Deaconess Medical
Center on December 14, 2020. ECF No. 31-1 ¶ 17. After reviewing the MRI results, Dr.
Ramappa recommended physical therapy. Id. Not seeing improvement after several months of
therapy, on February 4, 2021, Ms. Gonzalez sought a second opinion from Dr. Peter Chalmers at
the University of Utah Orthopaedics Center. Id. ¶ 19. Dr. Chalmers, an orthopedic surgeon,
4

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examined her, reviewed her MRI, and recommended surgery. Pet’r’s Ex. 6 at 156, ECF No. 10-
1. On February 12, 2021, Dr. Chalmers performed the surgery, an outpatient procedure
comprised of a “right shoulder arthroscopic extensive intraarticular debridement,” id. at 53,
including a “subacromial bursectomy,” id. at 55; debridement of an “area of bursa on the bursal
side of the anterior supraspinatus,” id.; and a “right open biceps tenodesis,” id. at 53. Dr.
Chalmers provided an affidavit for purposes of the litigation stating that Ms. Gonzalez’s
immunization injury “more likely than not” contributed to the symptoms that she reported to him
in February 2021. Pet’r’s Ex. 14 ¶ 6, ECF No. 33-1.
C. Procedural History
On February 26, 2021, Ms. Gonzalez filed a petition with the Office of Special Masters
seeking compensation under the Vaccine Act, 42 U.S.C. § 300aa-11(c). Pet. at 1, ECF No. 1.
She alleged that the administration of the HPV vaccine, the meningitis vaccine, or both, caused
her to develop SIRVA. Id. Ms. Gonzalez filed an amended petition in June 2022, clarifying her
factual assertions and narrowing her claim to the meningitis vaccine. Am. Pet. at 1, ECF No. 23-
1.
On November 7, 2022, Respondent filed his Rule 4(c) report and moved to dismiss the
case, arguing that Ms. Gonzalez failed to demonstrate that her injury lasted for more than six
months, as is necessary to meet the Vaccine Act’s “severity” requirement. See Resp’t’s Mot. to
Dismiss, ECF No. 28; Resp’t’s Rule 4(c) Report, ECF No. 29. Ms. Gonzalez filed a response on
December 23, 2022, asserting that the record shows her symptoms persisted throughout the 2019
volleyball season and into 2020, as she applied ice and heat treatments, took over-the-counter
pain medications, and continued to experience pain during the offseason. Pet’r’s Resp. to
Resp’t’s Mot. to Dismiss at 9–10, ECF No. 32. She also filed additional medical records, a
5

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supplemental affidavit, and the affidavit from Dr. Chalmers. See Pet’r’s Ex. 7–9, ECF No. 12;
ECF No. 14; ECF No. 31-1; ECF No. 33-1.
D. The Entitlement Decision
On May 6, 2024, the Chief Special Master issued his Decision Dismissing Petition,
denying Ms. Gonzalez’s request for compensation and dismissing her case. Dec. Dismissing Pet.
at 1–2, ECF No. 34. The Chief Special Master held that Ms. Gonzalez had not met her burden of
showing that she suffered the residual effects of SIRVA for more than six months and that, under
the Vaccine Act’s severity requirement, her petition must therefore be dismissed. Id.; see 42
U.S.C. §§ 300aa-11(c)(1), 300aa-13(a)(1)(A).
In reaching his decision, the Chief Special Master stated that he reviewed the complete
record, including all medical records, affidavits, Respondent’s Rule 4(c) report, and additional
evidence filed. ECF No. 34 at 4. He summarized the statutory severity requirement, which a
petitioner must meet to state a claim for compensation under the Vaccine Act, explaining that
Ms. Gonzalez had to demonstrate that she either: (i) suffered the residual effects or
complications of the injury for more than six months after receiving the vaccine, (ii) died from
receiving the vaccine, or (iii) suffered an injury from the vaccine that resulted in inpatient
hospitalization and surgical intervention. Id. at 9 (citing 42 U.S.C. § 300aa-11(c)(1)(D)).
The Chief Special Master then considered Ms. Gonzalez’s allegation that she suffered
residual effects or complications of SIRVA for more than six months. See id. at 2. In this case,
given the date of vaccination, Ms. Gonzalez needed to show that she suffered SIRVA symptoms
beyond January 30, 2020. Id. at 9. The Chief Special Master noted that Ms. Gonzalez was
evaluated on November 12, 2019, by a team trainer who stated that Ms. Gonzalez had “been
back to normal activity” since August 24, 2019, and had “not complained of any shoulder pain or
6

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decreased [range of motion].” Id. at 9–10 (citation omitted). He also noted that Ms. Gonzalez
had minimal treatment through November 2019, when she ceased medical care for the injury. Id.
at 10. Additionally, for the next 10 months, through September 2020, there is no record of Ms.
Gonzalez receiving any treatment for her right shoulder. Id.
As to the pain complained of in September 2020, the Chief Special Master observed that
on September 30, 2020, the team trainer stated that Ms. Gonzalez “believes she hurt her [r]ight
shoulder last night during practice, her serving shoulder . . . . She has not been keeping up with
the preventative exercises they were taught last year.” Id. (citation omitted). He also noted that
from “that date forward, Ms. Gonzalez’s right shoulder symptoms are consistently associated
with playing volleyball.” Id. (citation omitted). Moreover, the Chief Special Master emphasized
that in the six months following her vaccination Ms. Gonzalez was able to engage in a
“strenuous exercise program” despite her pain and that she obtained treatment on multiple
occasions for pain in areas other than her shoulder. Id. at 11.
He therefore concluded that her “shoulder pain appears to have mostly resolved by
August 2019” and that complaints of “renewed pain after September 2020 seem more likely the
product of an athletic injury.” Id. at 10. The Chief Special Master acknowledged that a
treatment gap does not bar a finding of severity but found that, here, “the mix of evidence
preponderates against a favorable severity finding.” Id. at 10–11.
E. The Motion for Review
On June 4, 2024, Ms. Gonzalez timely filed a Motion for Review of the Chief Special
Master’s Decision Dismissing Petition. Pet’r’s Mot. for Review at 1, ECF No. 35-1. Ms.
Gonzalez asks the Court to set aside any of the Chief Special Master’s findings of fact and
conclusions of law that are arbitrary, capricious, an abuse of discretion, or otherwise not in
7

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accordance with law, and issue its own findings of fact and conclusions of law or remand the
petition to the Chief Special Master for further proceedings. Id. Specifically, Ms. Gonzalez
claims that the Chief Special Master erred by failing to consider the entire record, especially Ms.
Gonzalez’s affidavit testimony averring that (a) she felt immense pressure to return to playing
volleyball and played through her shoulder pain and discomfort until the season ended in
November 2019, and that (b) in December 2019 she visited her primary care physician for a
vaccine and asked to receive it in her thigh instead of her arm due to continuing shoulder pain.
Id. at 8. She further claims that the Chief Special Master failed to consider Dr. Chalmers’
affidavit testimony and opinion that Ms. Gonzalez’s SIRVA contributed to the symptoms she
suffered from in February 2021 prior to surgery, and he failed to compare her August 2019 MRI
with her November 2020 MRI, which she argues show consistent findings and support Dr.
Chalmers’ opinion. Id. at 8, 9. Moreover, Ms. Gonzalez claims that the Chief Special Master
placed undue emphasis on notes from a team trainer stating that Ms. Gonzalez had “been back to
normal activity” by August 2019 and “had not complained of any shoulder pain,” despite the fact
that the contrary evidence just discussed undercut the finding that she was symptom-free in
November 2019. Id. at 9.
On June 27, 2024, Respondent filed his response to Ms. Gonzalez’s Motion for Review,
arguing that the Chief Special Master’s decision should be affirmed because, under the
deferential standard of review, Ms. Gonzalez has not shown that the decision was arbitrary and
capricious, an abuse of discretion, or otherwise not in accordance with law. Resp’t’s Resp. to
Pet’r’s Mot. for Review at 1, 18, ECF No. 38. The decision should be upheld, Respondent
argues, because the Chief Special Master’s findings are supported by ample record evidence.
8

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II. LEGAL STANDARD
A. The Court’s Standard of Review
This Court has jurisdiction to review a special master’s entitlement decision upon the
timely request of either party. 42 U.S.C. § 300aa-12(e)(2). Under the Vaccine Act, a court
deciding a motion for review may:
(A) uphold the findings of fact and conclusions of law of the special master and
sustain the special master’s decision,
(B) set aside any findings of fact or conclusion of law of the special master
found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law and issue its own findings of fact and conclusions of
law, or
(C) remand the petition to the special master for further action in accordance
with the court’s direction.
Id. §§ 300aa-12(e)(2)(A)–(C); accord Vaccine Rule 27(a)–(c). The three standards of review in
42 U.S.C. § 300aa-12(e)(2)(B) “vary in application as well as degree of deference,” as each
standard “applies to a different aspect of the judgment.” Munn v. Sec’y of Health & Hum. Servs.,
970 F.2d 863, 870 n.10 (Fed. Cir. 1992).
When reviewing the special master’s factual findings, the Court applies the arbitrary and
capricious standard. The scope of review is thus limited and highly deferential. Lampe v. Sec’y
of Health & Hum. Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000); see Munn, 970 F.2d at 870
(review of a special master’s factual findings is “well understood to be the most deferential
possible” (citations omitted)); see also Dougherty v. Sec’y of Health & Hum. Servs., 141 Fed. Cl.
223, 229 (2018) (“[S]pecial masters have broad discretion to weigh evidence and make factual
determinations.”). The Court does “not reweigh the factual evidence, assess whether the special
master correctly evaluated the evidence, or examine the probative value of the evidence or the
credibility of the witnesses—these are all matters within the purview of the fact finder.” Porter
v. Sec’y of Health & Hum. Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011). In other words, the
9

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Court should not “second guess the Special Master[’]s fact-intensive conclusions.” Cedillo v.
Sec’y of Health & Hum. Servs., 617 F.3d 1328, 1338 (Fed. Cir. 2010) (quotations omitted)
(quoting Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993)). “If the
special master has considered the relevant evidence of record, drawn plausible inferences and
articulated a rational basis for the decision, reversible error will be extremely difficult to
demonstrate.” Hines ex rel. Sevier v. Sec’y of Health & Hum. Servs., 940 F.2d 1518, 1528 (Fed.
Cir. 1991).
However, when a question of law is at issue—for example, a special master’s
interpretation of the Vaccine Act—the Court applies the “not in accordance with law” standard,
which is de novo review. See id. at 1527; Sanchez ex rel. Sanchez v. Sec’y of Health & Hum.
Servs., 34 F.4th 1350, 1353 (Fed. Cir. 2022). The third and final standard of review, abuse of
discretion, applies when the special master excludes evidence or otherwise limits the record upon
which he relies. See Munn, 970 F.2d at 870 n.10.
B. Burden of Proof for a Table Injury
A petitioner may establish that a vaccine caused an alleged injury in one of two ways.
See 42 U.S.C. § 300aa-11(c); Munn, 970 F.2d at 865. First, a petitioner who has received a
vaccine listed on the Vaccine Act’s Injury Table (“Table”) may recover for any resulting illness,
disability, injury, or condition that is also listed on the Table, or a significant aggravation thereof.
42 U.S.C. §§ 300aa-11(c)(1)(C)(i), 300aa-14; see Althen v. Sec’y of Health & Hum. Servs., 418
F.3d 1274, 1277–78 (Fed. Cir. 2005) (describing a “Table injury”). Second, a petitioner who has
received a vaccine listed on the Table, but whose vaccine-related injury does not meet Table
requirements, may recover under an “off-Table” theory. See 42 U.S.C. §§ 300aa-11(c)(1)(C)(ii),
300aa-13(a)(1)(A).
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In a Table injury case, a petitioner must prove the injury by a preponderance of evidence.
See id. § 300aa-13(a)(1)(A). To meet that burden, the petitioner must demonstrate that she meets
five criteria. Specifically, the petitioner must show that (1) she received a Table vaccine, see id.
§ 300aa-11(c)(1)(A);3 (2) she received the vaccine in the United States or meets a limited
exception, see id. § 300aa-11(c)(1)(B); (3) she either suffered a Table injury or died, see id.
§ 300aa-11(c)(1)(C); (4) she suffered the “residual effects or complications” from such injury for
more than six months or that such injury led to “inpatient hospitalization and surgical
intervention,” see id. § 300aa-11(c)(1)(D); and (5) she has not already collected civil damages
via award or settlement for such injury, see id. § 300aa-11(c)(1)(E).
III. DISCUSSION
Ms. Gonzalez raises one basic objection to the challenged dismissal decision: that the
Chief Special Master’s weighing, consideration, and discussion of evidence was arbitrary and
capricious or otherwise not in accordance with law. Specifically, she contends that in finding her
Table injury did not persist for more than six months, the Chief Special Master failed to consider
or discuss certain relevant record evidence—for example, affidavits submitted by her and Dr.
Chalmers—that purportedly supports her claim. ECF No. 35-1 at 7. Instead, Ms. Gonzalez
contends that the Chief Special Master placed “undue emphasis” on the team trainer notes. Id. at
9. These failures, she argues, render arbitrary and capricious the Chief Special Master’s finding
that the injury did not persist for more than six months. And as a corollary, Ms. Gonzalez
contends his conclusion that she did not meet the statutory severity requirement was contrary to
law.
3 For the list of Table vaccines, see 42 U.S.C. § 300aa-14(a) (initial list) and 42 C.F.R.
§ 100.3(a) (additional vaccines and injuries).
11

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Having considered the arguments and record, the Court rejects Ms. Gonzalez’s objection.
The Chief Special Master appropriately considered the whole record in reaching his factual
findings. And based on those findings, he rationally concluded that Ms. Gonzalez’s injury did
not persist for more than six months. Because this determination was within the Chief Special
Master’s purview as factfinder, the Court declines to review his finding de novo. Accordingly,
the Chief Special Master’s decision is upheld.
A. The Chief Special Master’s Finding that Ms. Gonzalez’s Injury Did Not Persist
for More Than Six Months Was Not Arbitrary and Capricious.
Ms. Gonzalez challenges the Chief Special Master’s finding that her SIRVA injury did
not last more than six months. In arguing that the Chief Special Master’s severity determination
was arbitrary and capricious, Ms. Gonzalez notes that the Vaccine Act directs the special master
to base his findings on “the record as a whole.” 42 U.S.C. § 300aa-13(a)(1). As discussed
above, she asserts that the Chief Special Master failed to consider or even discuss her
supplemental affidavit testimony, Dr. Chalmers’ affidavit testimony, or the purportedly
consistent findings from her August 2019 and November 2020 MRIs. ECF No. 35-1 at 8–10.
Instead, Ms. Gonzalez asserts that the decision unduly focused on team trainer notes suggesting,
for example, that Ms. Gonzalez had been “back to normal activity” by August 2019. Id. at 9.
The Court finds that the Chief Special Master’s decision was not arbitrary and capricious.
Nothing in his decision suggests that he failed to “consider[] the relevant evidence of record.”
Hines, 940 F.2d at 1528. On the contrary, the Chief Special Master affirmatively indicated that
he based his findings on “a complete review of the record to include all medical records,
affidavits, Respondent’s Rule 4(c) report, and additional evidence filed.” ECF No. 34 at 4. This
representation is supported by his findings of fact, which provide a detailed summary of the
evidence to include the testimony in Ms. Gonzalez’s initial affidavit and Dr. Chalmers’ affidavit,
12

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as well as Ms. Gonzalez’s medical records and MRIs. See id. at 4–9. Although the decision
does not expressly cite Ms. Gonzalez’s supplemental affidavit or refer to the vaccine she
received in her thigh in December 2019, that does not in itself render the decision arbitrary and
capricious. As judges of this court have recognized, a special master need not “‘discuss every
piece of evidence or testimony in [his or] her decision.’” Simanski v. Sec’y of Health & Hum.
Servs., 115 Fed. Cl. 407, 436 (2014) (quoting Snyder ex rel. Snyder v. Sec’y of Health & Hum.
Servs., 88 Fed. Cl. 706, 728 (2009)), aff’d, 601 F. App’x 982 (Fed. Cir. 2015). Indeed, Ms.
Gonzalez’s own affidavits (both initial and supplemental) are the type of evidence that the Court
presumes the Chief Special Master considered. See Hazlehurst v. Sec’y of Health & Hum.
Servs., 604 F.3d 1343, 1352 (Fed. Cir. 2010).
Ms. Gonzalez references no authority establishing that a special master presumptively
fails to consider relevant parts of the record where, as here, he does not cite certain pieces of
evidence that a petitioner finds important. She points to Cedillo to support her argument that the
decision should have explicitly considered Dr. Chalmers’ and her affidavits, the December 2019
vaccine, and a comparison of her MRIs. See ECF No. 35-1 at 7–8 (citing Cedillo, 617 F.3d at
1345). But Cedillo establishes no such requirement. Rather, in that case, the United States Court
of Appeals for the Federal Circuit upheld a special master’s decision, describing it as “careful
and thorough.” Cedillo, 617 F.3d at 1345. The Court noted that the special master “stated his
reasons for rejecting or discounting each item of evidence in which the petitioners relied,” id.,
but nowhere did it suggest that to satisfy judicial review he must always do so. In fact, Cedillo
stated that a special master’s factual findings should be upheld if they are “based on evidence in
the record that [is] not wholly implausible,” and the Court upheld the special master’s decision
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because it was “rationally supported by the evidence, well-articulated, and reasonable.” Id. at
1338 (quoting Lampe, 219 F.3d at 1363); id. at 1349.
Nor does Ms. Gonzalez reference authority that supports her related argument that the
Chief Special Master’s decision should be set aside because he failed to explain why he rejected
Dr. Chalmers’ affidavit testimony. See ECF No. 35-1 at 9–10. She concedes that special
masters “are undoubtedly given discretion in determining the credibility of witnesses” but insists
that they must discuss such determinations. In support of this argument, Ms. Gonzalez cites
Elson ex rel. Hodge v. Secretary of Health and Human Services, 164 Fed. Cl. 633 (2023). In
Elson, the special master rejected the petitioner’s testimony as a whole because of
inconsistencies between certain statements and the medical record. Id. at 642–43. The court set
aside the special master’s conclusion because in determining the reliability and credibility of the
petitioner he failed to discuss numerous other medical records that were supportive of the
particular testimony at issue. Id. at 646. Here, however, the only other medical records that Ms.
Gonzalez points to are the MRIs, which the Chief Special Master considered and discussed. See
ECF No. 34 at 5, 7. Moreover, Ms. Gonzalez does not explain how the Chief Special Master’s
review of the MRIs was problematic, nor does she elaborate on her allegation that the MRI
results were consistent and supportive of Dr. Chalmers’ opinion. See ECF No. 35-1 at 9;
compare ECF No. 1-4 at 7 (August 2019 MRI report) with ECF No. 12-1 at 6–7 (November
2020 MRI report). Dr. Chalmers’ affidavit did not compare the two MRIs or even mention the
August 2019 MRI. See generally ECF No. 33-1.
To be sure, the Chief Special Master gave more “weight to the fact that [Ms. Gonzalez]
was able to engage in a strenuous exercise program associated with playing college volleyball
despite her pain.” ECF No. 34 at 11. He also gave more weight to a team trainer’s note
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indicating that in August 2019 Ms. Gonzalez had been “back to normal activity,” id. at 9, and to
a September 2020 note indicating that Ms. Gonzalez “believe[d] she hurt her [r]ight shoulder last
night during practice,” id. at 10. But his weighing of these facts does not suggest that he ignored
other facts. Indeed, the broad discretion to weigh evidence is “within the purview of [the special
master as] the fact finder.” Porter, 663 F.3d at 1249; see R.J. ex rel. W.J. v. Sec’y of Health &
Hum. Servs., 93 F.4th 1228, 1235 (Fed. Cir. 2024) (“It is within a special master’s discretion to
weigh evidence.” (citation omitted)).
The record demonstrates that the Chief Special Master exercised that discretion
reasonably and drew plausible inferences from the facts. See Hines, 940 F.2d at 1528. In this
instance, the Chief Special Master explained that contemporaneous team trainer records showed
no evidence of pain, decreased range of motion, or treatment of Ms. Gonzalez’s shoulder from
November 2019 onward. ECF No. 34 at 9–10. Notwithstanding her affidavit testimony
describing continued pain, he noted a 10-month gap in any treatment related to her shoulder even
though she presented for treatment of pain in other parts of her body. Id. at 6, 10, 11. And he
highlighted Ms. Gonzalez’s apparent ability to engage in a competitive, college-level volleyball
program less than six months after vaccination. Id. at 10–11. As to the renewed pain
experienced in September 2020, the Chief Special Master again relied on contemporaneous
trainer notes indicating that Ms. Gonzalez hurt her shoulder while serving during practice, and
both contemporaneous trainer notes and medical records after that date (including from visits
with Dr. Chalmers) that associated the new pain with playing volleyball. See id. at 10. The
Court finds no error in the Chief Special Master’s reliance on this evidence over Ms. Gonzalez’s
and Dr. Chalmers’ contrary affidavit testimony. See Cucuras v. Sec’y of Health & Hum. Servs.,
993 F.2d 1525, 1528 (Fed. Cir. 1993) (“[T]he Supreme Court counsels that oral testimony in
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conflict with contemporaneous documentary evidence deserves little weight.”). Nor were his
findings of fact based on this evidence implausible.
Moreover, the Chief Special Master “articulated a rational basis” for his decision. Hines,
940 F.2d at 1528. As he explained, consistent with the findings, “the record does not
preponderate in favor of the conclusion that [Ms. Gonzalez’s] SIRVA likely continued” after
November 2019, ECF No. 34 at 11, and the complaints of pain that emerged “after September
2020 seem more likely the product of an athletic injury,” id. at 10. Ample record evidence
supports this determination. See id. at 9–11. As a result, the Chief Special Master’s
determination that Ms. Gonzalez did not establish the severity requirement was rational.
Lastly, the Chief Special Master did not act arbitrarily and capriciously by placing
“undue emphasis” on team trainer notes. Paluck v. Sec’y of Health & Hum. Servs., 786 F.3d
1373, 1383 (Fed. Cir. 2015). Ms. Gonzalez’s assertion to the contrary is essentially an extension
of her argument that the Chief Special Master improperly weighed the facts. In Paluck, the
Federal Circuit reversed a special master’s finding that the petitioner did not experience
progressive neurodegeneration following vaccination. Id. The Court held that the record
contained “no reasonable basis” for his finding; rather, “compelling evidence” supported the
petitioner. Id. at 1382. The Court also found that the special master placed undue emphasis on
evidence showing “relatively insignificant variations in muscle tone,” even though other
evidence explained why those variations were immaterial. Id. at 1383 (“[B]ecause physical
therapy can stretch muscles, the fact that K.P.’s muscle tone fluctuated during the period when
he was receiving chiropractic therapy . . . did not mean that his overall condition was
improving.” (citation omitted)). This lack of record evidence, combined with the “short shrift”
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the special master gave evidence supporting the petitioner, made the decision arbitrary and
capricious. Id.
This case, however, is not like Paluck. The Court has little doubt that the Chief Special
Master’s decision emphasized team trainer notes, but the emphasis he placed on them was far
from undue. Instead, the Chief Special Master cited ample record evidence to support his
determination that Ms. Gonzalez’s SIRVA lasted less than six months. See ECF No. 34 at 9–11.
The evidence detailed in his decision, including the team trainer notes suggesting that Ms.
Gonzalez had returned to normal activity in August 2019 and that she suffered an athletic injury
to her shoulder in September 2020, demonstrates the rational basis for his determination. In
pursuit of his duty to consider the whole record, the Chief Special Master considered these
notes—in combination with other consistent evidence including contemporaneous medical
records—and assessed their weight accordingly. The Court does not find his weighing irrational,
and his decision therefore does not run afoul of the arbitrary and capricious standard.
In sum, Ms. Gonzalez’s core dispute with the Chief Special Master appears to be a
disagreement with the weight he assigned different pieces of evidence. As discussed above,
allocating relative weight to evidence is a matter of fact-finding within the special master’s
purview. It is therefore “extremely difficult to demonstrate” reversible error here, Hines, 940
F.2d at 1528, and ultimately Ms. Gonzalez does not clear that hurdle. For these reasons, the
Court declines to set aside the Chief Special Master’s decision as arbitrary and capricious.
B. The Court Declines to Review the Chief Special Master’s Severity Determination
De Novo.
Ms. Gonzalez further argues that, because the Chief Special Master failed to consider all
the relevant evidence in the record, his conclusion that Ms. Gonzalez failed to satisfy the severity
requirement is not in accordance with law. See ECF No. 35-1 at 10. Respondent responds that
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this “attempt to cast the [severity determination] as a question of law under the ‘not in
accordance with law’ standard” is “without merit” because such a determination is a factual
finding. ECF No. 38 at 18. Ms. Gonzalez’s argument appears to be derivative of her core claim
that the Chief Special Master’s weighing of evidence was erroneous. In any event, she
challenges a quintessential finding of fact, not a legal conclusion. See Wyatt v. Sec’y of Health &
Hum. Servs., 825 F. App’x 880, 886, 887 (Fed. Cir. 2020) (categorizing special master’s
determination that an injury lasted more than six months as a factual finding); Kirby v. Sec’y of
Health & Hum. Servs., 997 F.3d 1378, 1381 (Fed. Cir. 2021) (applying arbitrary and capricious
review to special master’s finding that injury lasted more than six months); id. at 1384 (holding
“a reasonable fact finder could” evaluate Kirby’s testimony as special master did) (emphasis
added)).
Ms. Gonzalez does not contest that the Vaccine Act has a severity requirement that
requires her injury to have lasted more than six months. See ECF No. 35-1 at 7, 9–10 (arguing
that Ms. Gonzalez meets the severity requirement); ECF No. 23-1 ¶ 28 (alleging that Ms.
Gonzalez sustained a right shoulder SIRVA injury for a period lasting “longer than six months”).
Nor does she argue that she meets the severity requirement even if the Chief Special Master’s
factual findings are correct—in other words, she does not contest his interpretation of the
statute’s requirement. Cf., e.g., Wright v. Sec’y of Health & Hum. Servs., 22 F.4th 999, 1004–05
(Fed. Cir. 2022) (“The construction of ‘residual effects’ in the Vaccine Act is a question of law,
which we review de novo.” (emphasis added) (citation omitted)). Her challenge, then, raises not
a legal question, but a factual one. That means the decision receives arbitrary and capricious
review.
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Even if Ms. Gonzalez is implying that the severity determination here is based on a mere
inference drawn from facts or the weighing of facts, the Court would still give this determination
deference as a factual finding. The Federal Circuit has repeatedly held that such inferences and
weighing are factual findings. See, e.g., Sanchez, 34 F.4th at 1354–55 (categorizing special
master’s crediting of family testimony as factual finding); Kottenstette v. Sec’y of Health & Hum.
Servs., 861 F. App’x 433, 439, 442 (Fed. Cir. 2021) (categorizing plausible inferences from
record as factual findings); Lampe, 219 F.3d at 1360 (same); W.J., 93 F.4th at 1235 (categorizing
special master’s exercise of “discretion to weigh evidence” as factual finding). Because it does
not set aside the Chief Special Master’s findings of fact as arbitrary and capricious, the Court
declines to replace those findings with its own.
IV. CONCLUSION
For the above reasons, the Court finds that the Chief Special Master’s examination of the
record in Ms. Gonzalez’s case, including all medical records and affidavits, resulted in a decision
that was not arbitrary and capricious or contrary to law. The Chief Special Master’s Decision
Dismissing Petition is therefore affirmed, and Petitioner’s Motion for Review (ECF No. 35) is
DENIED. The Clerk of the Court shall enter judgment consistent with this Opinion.
SO ORDERED.
Dated: October 24, 2024 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
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