VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-00250
Package ID: USCOURTS-cofc-1_22-vv-00250
Petitioner: D.A.
Filed: 2022-03-04
Decided: 2026-03-23
Vaccine: measles, mumps, rubella, varicella (MMRV)
Vaccination date: 2019-03-07
Condition: primary disseminated herpes zoster infection
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On March 4, 2022, Dana Bertucci filed a petition on behalf of her son, D.A., alleging that an MMRV vaccination administered on March 7, 2019 caused primary disseminated herpes zoster infection. D.A. was four years old at vaccination.

The public decision focused on the Vaccine Act's severity requirement rather than resolving vaccine causation. Respondent's Rule 4(c) report raised the objection that the record did not show residual effects or complications lasting more than six months. The decision notes that D.A. had a rash/infection history and that the family also reported viral illness, but the decisive issue was whether the statutory duration requirement had been met.

On March 23, 2026, Chief Special Master Brian H. Corcoran dismissed the claim for insufficient evidence. No vaccine-injury compensation was awarded.

Theory of causation field:
MMRV vaccine on March 7, 2019, at age 4, allegedly causing primary disseminated herpes zoster infection; DISMISSED/DENIED. Respondent raised six-month severity objection in Rule 4(c) report. Chief SM Brian H. Corcoran dismissed for insufficient evidence of the required residual effects/complications. Petition filed March 4, 2022; decision March 23, 2026. No award.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_22-vv-00250-0
Date issued/filed: 2026-04-17
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 03/23/2026) regarding 38 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (ers) Service on parties made.
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Case 1:22-vv-00250-UNJ Document 39 Filed 04/17/26 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-250V
DANA BERTUCCI, on behalf of D.A., a
minor, Chief Special Master Corcoran
Petitioner,
v. Filed: March 23, 2026
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jonathan Svitak, Shannon Law Group, P.C., Woodbridge, IL, for Petitioner.
Ryan P. Miller, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DISMISSING CASE1
On March 4, 2022, Dana Bertucci, on behalf of her son, D.A., a minor, filed a petition for
compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to
-34 (“Vaccine Act” or “Act”).2 Petitioner alleges that a measles, mumps, rubella, varicella
(“MMRV”) vaccine administered to D.A. on March 7, 2019, caused him to develop “a primary
disseminated [h]erpes zoster infection.” Petition at 1.
Respondent has asserted that Petitioner has provided insufficient proof of severity of
injury—a requirement applicable to all Vaccine Act claims. See Section 11(c)(1)(D)(i). I therefore
ordered the parties to brief that issue. See Petitioner’s Show Cause Response, dated October 14,
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 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:22-vv-00250-UNJ Document 39 Filed 04/17/26 Page 2 of 10
2025 (ECF No. 36) (“Br.”); Respondent’s Reply, dated October 30, 2025 (ECF No. 37) (“Opp.”).
Now, for the reasons set forth below, I dismiss the matter for Petitioner’s inability to
preponderantly establish severity.
I. Fact Background
Pre-Vaccination History
D.A. was born on February 7, 2015 (and was thus four years old at the time of the
vaccinations at issue). He had a complex medical history prior to vaccination. Ex. 1. D.A. had
multiple congenital anomalies at birth, and required many surgeries beginning at a very young age.
Ex. 11 at 502–03.3 D.A.’s newborn screening deemed him “borderline abnormal for [severe
combined immunodeficiency . . .]” (although the record does not ultimately suggest D.A. was
diagnosed with immunodeficiency). Id.
In his early years, D.A. received extensive treatment to address his chronic health issues.
See, e.g., Ex. 5 at 15, 60 (reflecting hypospadias), and 79 (reflecting D.A. suffered from congenital
hypothyroidism); Ex. 11 at 13 (colostomy placement on February 10, 2015), 509–10 (February
2015 urethral stenosis/atresia and vesicostomy, and September 2016 revision for prolapse), 4649
(noting on August 22, 2015, that D.A. suffered from motor delay), and 7087 (reflecting a history
of pulmonary hypertension). D.A. also had a right kidney transplant in November 2017, and
remained an in-patient during this time due to post-operation complications. Ex. 11 at 26. (As
noted below, some medications and treatments D.A. subsequently received were intended to
address the risk of organ rejection).
The need for repeated treatment for D.A.’s health concerns continued into 2018–19. See,
e.g., Ex. 3 at 25 (July 5, 2018 visit for a UTI and fever); Ex. 3. at 21–24 (August 9, 2018, well-
child visit for URI and “lots of skin tags from meds for transplant she was told”); Ex. 3 at 17–19
(October 5, 2018 visit for nasal congestion and a cough); Ex. 3 at 12–16 (January 10, 2019 visit
for nasal congestion and a cough). As of his January 10, 2019, visit with his pediatrician, he was
receiving speech therapy, physical therapy, and occupational therapy. Id. at 13.
Vaccination and Herpes Zoster Infection
On March 7, 2019, D.A. had a well visit with his pediatrician. Ex. 3 at 6–11. He had not
been sleeping well due to a cough, and was taking medication for his treatment. Id. at 7. He was
3 In particular, D.A. was born with an imperforate anus, multicystic dysplastic kidneys, absent ductus venosus, and
was referred to as a “critically ill infant.” Ex. 11 at 503. He needed a diverting colostomy due to his imperforate anus.
Id.
2

Case 1:22-vv-00250-UNJ Document 39 Filed 04/17/26 Page 3 of 10
also receiving an antibiotic for a Clostridioides difficile (“c. diff”) infection,4 but was still
experiencing gastrointestinal (“GI”) bleeding. Id. Examination revealed the presence of “scattered
molloscum” (a benign viral infection) on his skin. Id. at 8. At this time D.A. received several
vaccines, including the MMRV at issue. Ex. 11 at 6, 9; Ex. 3 at 6. 3. There is no medical record
evidence of any immediate reaction to the receipt of this vaccine.
On April 19, 2019 (now approximately six weeks post-vaccination), D.A. was treated for
a rash on his face and chest thought to be the product of “anti-rejection medication.” Ex. 3 at 1–3.
The history taken at this visit notes that D.A. had a chronic rash (itchy bumps and redness) on his
face which had worsened in the past two days. Id. Petitioner also noted that the week prior, D.A.
had been having trouble sleeping, and was up at night crying. Id.
On exam, D.A. had no fever, cough, diarrhea, or change in fluids, and no decreased activity
was reported. Ex. 3 at 2. His rash was characterized by clusters of papules, some fleshy with
umbilication, others excoriated small scabs on the bridge of his nose, but D.A. had no vesicles or
pustules. Id. at 3. The impression was that he had increased number of molluscum. D.A. was
assessed with dermatitis featuring increased molluscum, deemed a byproduct of D.A.’s
immunosuppressive medications, and he was prescribed a topical antibiotic. Id.
(Petitioner has filed seven pages of photos of a child as Exhibit 5, although none have been
authenticated precisely (i.e. with indicia of time-stamped metadata). See Ex. 5. The first three
photos appear to show a child, presumably D.A., with what appears to be an acute infection or rash
on his face. Ex. 5 at 1–3. The last four show the same child, either before the rash or after the rash,
having recovered. Id. at 4–7).
A few days later (April 22, 2019), D.A. was seen in the emergency room for treatment of
a rash and fussiness. Ex. 4 at 5. The history taken at this time reports that a week before (which if
literally true would be beginning on April 15, 2019), D.A. had developed a small rash over his
face that had spread and was very pruritic, and that he was now crying more than normal and not
sleeping. Id. D.A. had no known personal history of herpes simplex virus (“HSV”) either (although
Petitioner reported having experienced cold sores—and later it was reported the family had been
experiencing a viral infection). Id.; Ex. 4 at 54.
On examination, D.A. was afebrile and appeared well, other than his rash (characterized
by multiple papules over the left side of his face, with surrounding excoriations and crusting, and
papules over his left neck and back, anterior chest, left hand, and abdomen). Ex. 4 at 8. A consulted
4 Clostridium difficile, or C. difficile, is a bacteria species that is part of the normal colon flora in infants and some
adults; it produces a toxin that can cause inflammation that may result in colitis and diarrhea. Clostridium Difficile,
Dorland's Online Med. Dictionary,
https://www.dorlandsonline.com/dorland/definition?id=65630&searchterm=Clostridium%20difficile (last visited
Mar. 19, 2026).
3

Case 1:22-vv-00250-UNJ Document 39 Filed 04/17/26 Page 4 of 10
dermatologist expressed the view that D.A. could have HSV or shingles, recommended
intravenous (“IV”) antivirals and testing, and D.A. was subsequently admitted to the hospital. Id.
A swab of an unroofed vesicle was positive for varicella zoster virus (“VZV”). Id. at 54, 57. D.A.
was started on an IV transmission of acyclovir (an antiviral used to treat herpes infections),
although the dermatologist allowed the rash could merely reflect molloscum contagiosum. Id. at
26, 57.
D.A. remained hospitalized at Lurie Children’s Hospital until April 26, 2019. Ex. 4 at 26.
While being treated, it was noted that D.A. had been afebrile with normal vital signs, although he
displayed lesions on his left anterior chest, torso and left lateral aspect of his nose and cheek. Ex.
4 at 23. An infectious disease specialist was consulted about D.A. on April 23rd, and was informed
about the same general onset of rash (anywhere from April 13th to 15th). Ex. 4 at 48. Taking into
account the positive VZV infection result from testing of a rash lesion, it was proposed that D.A.
was experiencing a disseminated VZV infection. Id. D.A.’s blood culture was negative, and his
white blood cells were slightly low at 5.23. Id. at 66, 77.
On April 24, 2019, D.A. developed a fever. Ex. 4 at 39. D.A. was thereafter seen a second
time by an infectious disease physician and testing had revealed a possible urinary tract infection,
but the rash appeared to be improving, as D.A.’s lesions were “nearly fully crusted over,” with no
evidence of new lesions. Id. at 45, 47. Similar observations of his general improvement were made
the following day. Id. at 38. When discharged on April 26th, D.A. had a temperature of 99, and a
normal exam—except for a vesiculopapular rash with mostly crusted over lesions present on his
left anterior chest, torso, and the left lateral aspect of his nose and cheek, as well as excoriations
over his chest and abdomen. Id. at 2. He was instructed to continue acyclovir for four more days,
plus to use a topical antibiotic. Id.
Treatment After April 2019 Hospitalization
Following the late-April 2019 discharge, D.A. had multiple medical visits over the next
several months and years—but with no mention of any ongoing rash or associated sequelae. See,
e.g., Ex. 4 at 135, 185 (May 2, 2019 IV iron infusion and phone discussion of a GI bleed); Ex. 11
at 10915 (June 5, 2019 labs), 10934 (June 24, 2019 PT evaluation for decreased strength and
posture and fatigue with notations that he first walked at two years old and could not run because
he could not unlock his knees), 10956 (July 30, 2019 labs showing elevated BUN of 46 mg/dl
(normal is up to 18)), 11005 (August 2, 2019 iron infusion for anemia),11023 (August 8, 2019
visit for URI symptoms and chest pain with a chest x-ray without acute changes), 11078 (August
24, 2019 emergency room visit for increased bloody output in colostomy bag and creatinine
trending upward, with no rash on exam), 11159 (August 28, 2019 renal biopsy due to rising
creatinine, showing evidence of acute rejection with possible resolving intraparenchymal
infection, particularly given recurrent UTIs), 11217, 11229 (September 4, 2019 admission for
possible renal infection/pyelonephritis and to start IV steroids), 11441 (November 21, 2019
4

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nephrology follow-up), 11536 (December 17, 2019 visit for chronic and acute GI issues),11561,
and 11577 (December 26, 2019 admission for hyponatremia correction).
None of these 2019 records contain any treater comments associating the April rash with
subsequent illnesses or concerns. D.A.’S VZV infection was in fact referenced only at a treatment
visit in July 2019 following up on his kidney transplant. See Ex. 11 at 10,985. He was at this time
generally noted to be recovering well, although his many comorbidities were referenced. The notes
from this follow-up also, however, memorialized his history of “varicella lesions” after
“inadvertently” receiving the varicella vaccine in 2019, with the recommendation that he not
receive live vaccines in the future. Id.
The same absence of subsequent sequelae or residual effects from the VZV infection is
evident in records for treatment events from 2020–21. See, e.g., Ex. 11 at 9 (December 28, 2022
receipt of the Menactra vaccination), 11652 (January 16, 2020 admission for compensated septic
shock and acute kidney injury), 11853, 11888 (February 3–5, 2020 admission for anorectoplasty
for kidney transplant with rejection), 12872 (February 22, 2021 electrocardiogram), 13209 (May
6, 2021 admission for pancreatitis), and 12448–49 (July 1, 2021 follow-up with renal care
providers who indicated D.A. might require another transplant in the future); On October 21, 2024,
D.A. had his second kidney transplant (Ex. 11 at 18808), and last winter was reported to be
otherwise doing well. Ex. 11 at 19264.
Other Relevant Evidence
In 2025, Petitioner filed four pages of additional evidence comprised of two photos (Ex.
13 (ECF No. 35-2), plus a supplemental declaration (Ex. 12 (ECF No. 35-1)). The photographs
were submitted without metadata but contain a Bates footer imposed that reads: “Ex. 13 - Photos
of D.A. on 10.13.2025.” Ex. 13 at 1–2. They are blurry but depict a portion of a child’s face, with
faint markings on his face that vary in color, size and shape—including one on his nose that appears
to be an indentation; one above the left eyebrow, that is a subtle mark that appears slightly darker
than the rest of his skin; a pinkish mark under his right eye; a pearly-colored bump above his left
lip, near his nose; and possibly two-to-three, slightly darker spots around his left eye. See Ex. 13.
These marks are barely noticeable and do not appear inconsistent with any typical discoloration
that may appear on a child’s face, particularly since any detectable spots or marks in these photos
are varied in type, color, and size, and therefore cannot clearly be inferred to have been caused by
the same thing, such as allegedly vaccine-caused VZV infection. Id.
Petitioner also filed two affidavits attesting to the health of D.A. before and after receiving
the MMRV vaccine. Ex. 1, filed on Mar. 4, 2022 (ECF No. 1-3); Ex. 12, dated Oct. 14, 2025 (ECF
No. 35-1). The affidavits affirm that D.A. suffered from a myriad of medical complications for
which he was receiving immunosuppressive therapy, but deny the existence of any visible lesions
on D.A.’s face or chest before receiving the MMRV vaccine. Ex. 1 at 1; Ex. 12 at 1. On or around
5

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April 12, 2019, roughly a month after D.A.’s MMRV vaccination, Petitioner and her husband
noticed a developing rash on D.A.’s skin that continued to develop to D.A.’s back, face, neck, and
chest over the course of a week. Ex. 1 at 1; Ex. 12 at 1. D.A. was taken to Erie West Town Health
Center and subsequently Lurie’s Children’s Hospital which confirmed the lesions the result of the
varicella zoster infection, which Petitioner asserts was caused by the MMRV vaccine. Ex. 1 at 1–
2. As of October 14, 2025, Petitioner affirms that D.A. continues to have permanent, visible
scarring on his face from his lesions as shown by the photos she filed. Ex. 12 at 2 (referencing Ex.
13).
These more recently-filed items of evidence are not, however, corroborated by filed any
records from a dermatologist or other provider stating that the depicted markings are associated
with a prior VZV infection, let alone when that infection began (or why the markings would
linger).
II. Procedural History
As noted, this matter was initiated in the spring of 2022. It remained in “pre-assignment
review” for over two years, while the Petitioner endeavored to obtain and file medical records
necessary to substantiate the claim, but was finally assigned to me in June 2024. Respondent’s
Rule 4(c) Report was filed in July 2025, and it raised the severity objection that is the subject of
this decision. ECF No. 33. I subsequently set a briefing schedule, and the parties completed their
filings by the end of October 2025.
III. Parties’ Arguments
Petitioner
Petitioner argues that the record evidence establishes D.A.’s alleged vaccine injury satisfies
the Vaccine Act’s severity requirement by a preponderance of the evidence. Br. at 5. To meet the
severity requirement, Petitioner holds that she must show that D.A.’s lesions, and subsequent
scarring, lasted at least six months from when they allegedly started on April 12, 2019. Id.
Therefore, Petitioner’s must show that D.A.’s scars remained through October 12, 2019. Id.
Petitioner claims she has done this through a variety of evidence, including medical records,
photographs taken more than five years after D.A.’s VZV infection, and affidavit testimony that
show D.A. currently suffers from permanent scarring. See id. at 6 (referencing Ex. 1; Ex. 4 at 1–
57; Ex. 5 at 5–7; Ex. 12; Ex. 13).
In response to Respondent’s speculation that any scarring on D.A.’s face could be due to
his molluscum condition, Petitioner once again points to D.A.’s medical records and affidavits.
Br. at 6. A consult note from D.A.’s April 2019 hospital stay, for example, memorializes the fact
that D.A.’s father informed doctors that D.A. had never experienced such a rash due to his
6

Case 1:22-vv-00250-UNJ Document 39 Filed 04/17/26 Page 7 of 10
molluscum. Id. (citing Ex. 4 at 55). Petitioner’s affidavits also affirm that D.A. did not have facial
scarring prior to the vaccine. Id. (discussing Ex. 12 at 1). Further, D.A.’s dermatologist expressed
the view that the possibility that D.A.’s lesions were due to his molluscum was “less clinically
consistent” than from VZV or HSV. Id. (citing Ex. 4 at 55). Therefore, Petitioner concludes that it
is clear that the lesions appearing on D.A.’s face were likely caused by his VZV infection, and
D.A.’s scars—that have perpetuated for years—were a result of those lesions. Id.
Respondent
Respondent argues that there is insufficient evidence to establish that D.A.’s lesions and
scarring lasted six months. Opp. at 13. Rather, D.A.’s rash and any other residual effects of his
VZV infection resolved around April 26, 2019, when he was discharged from the hospital. Id.
(citing Ex. 4 at 2). This is because there is no further mention of ongoing rash, lesion, or scarring
in D.A.’s medical record past this date—except to note that it happened in his medical history. Id.
(citing Ex. 11 at 10985). Petitioner had frequent medical care following discharge, and there was
no mention, by either Petitioner of D.A.’s medical providers that mention ongoing sequelae or
scarring. Id. at 13–14. The only evidence of residual effects past April 26, 2019, is from
Petitioner’s affidavits and the photos submitted. Id. But the photos are insufficient to satisfy the
Act’s severity requirement because they are undated, lack metadata, and were not filed with a
statement of a medical provider detailing what they depict. Id. at 14.
Petitioner has also not provided enough medical evidence to connect any persistent scarring
on D.A.’s face to his VZV infection. Opp. at 14–15. Any lesions and scarring D.A. may be
experiencing could be from D.A.’s molluscum infection—which has been noted to be chronic, and
has affected his face. Id. at 14 (citing Ex. 3 at 2). Respondent notes that the lack of medical records
supporting Petitioner’s claim make it impossible from a special master to conclude that a vaccine-
related injury has occurred, because the only evidence in favor of severity are based solely upon
the claims of petitioner. Id. at 15 citing (Section 13(a)(1); Cucuras v. Sec’y of Health & Hum.
Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993)).
IV. Applicable Legal Standards
Petitioners carry the burden of establishing the matters required in the petition by a
preponderance of the evidence. Section 13(a)(1)(A). One such requirement is “documentation
demonstrating that [the petitioner]5 ... suffered the residual effects or complications of such
[vaccine-related] illness, disability, injury, or condition for more than 6 months after the
administration of the vaccine.” Section 11(c)(1)(D)(i) (emphasis added); see also Black v. Sec’y of
Health & Hum. Servs., 33 Fed. Cl. 546, 550 (1995) (reasoning that the “potential petitioner” must
5 Or other vaccinee, e.g., a minor or other person who is unable to represent his or her own interests, on behalf of
whom the claim is brought.
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not only make a prima facie case, but clear a jurisdictional threshold, by “submitting supporting
documentation which reasonably demonstrates that a special master has jurisdiction to hear the
merits of the case”), aff’d, 93 F.3d 781 (Fed. Cir. 1996) (internal citations omitted).
As stated by Congress when amending the Vaccine Act in 1987, the six-month severity
requirement was designed “to limit the availability of the compensation system to those individuals
who are seriously injured from taking a vaccine.” H.R. REP. 100-391(I), at 699 (1987), reprinted
in 1987 U.S.C.C.A.N. 2313–1, 2313–373. The only exception is the alternative added in 2000, a
showing that the vaccine injury required inpatient hospitalization and surgical intervention.
Children’s Health Act of 2000, Pub. L. No. 106–310, § 1701, 114 Stat. 1101, 1151 (2000) (codified
as amended at 42 U.S.C. § 300aa–11(c)(1)(D)(iii)). This exception was added to allow
compensation in intussusception cases which often required surgical intervention but then resolved
in less than six months. Id.
A few years ago, the Federal Circuit clarified the considerations relevant to analysis of
severity. See generally Wright v. Sec’y of Health & Hum. Servs., 22 F.4th 999 (Fed. Cir. 2022). In
Wright, the Circuit construed the phrase “residual effects” to mean “something remaining or left
behind from a vaccine injury—that “never goes away or that recurs after the original illness,” in
connection with an injury's somatic nature. Id. at 1005 (emphasis added). Such residual effects
must also reflect “conditions within the patient”—not evidence of clinical/lab testing (otherwise
not itself detrimental to a patient's health) or medical monitoring to evaluate if those conditions
even exist. Id. at 1006.6
The Act prohibits determinations “based on the claims of a petitioner alone,
unsubstantiated by medical records or by medical opinion.” Section 13(a)(1). Medical records
must be considered, see Section 13(b)(1), and are generally afforded substantial weight. Cucuras,
993 F.2d at 1528. 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)). However, the Federal Circuit
has 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).
It is thus certainly the case that factual matters required to prove elements of a Vaccine Act
claim may be established by a mix of witness statements and record proof, with the special master
required to fully consider and compare the medical records, testimony, and all other “relevant and
6 There is of course a “surgical intervention” exception, where an alleged vaccine injury can be deemed sufficiently
severe even in the absence of six months of sequelae. Section 11(c)(1)(D). And, in some instances, intrusive diagnostic
measures have been deemed to meet this exception, despite the fact that the procedure at issue was not directly aimed
at ameliorating the relevant condition. Leming v. Sec'y of Health & Hum. Servs., 98 F.4th 1107, 1112*–13 (Fed. Cir.
2024). But this case does not present evidence of any surgical intervention that occurred within six months of D.A.’s
rash onset that was either intended to treat the VZV infection, or even to evaluate the rash’s nature.
8

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reliable evidence contained in the record.” La Londe v. Sec’y of Health & Hum. Servs., 110 Fed.
Cl. 184 (2013) (citing Section 12(d)(3); Vaccine Rule 8), aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
ANALYSIS
To satisfy the Vaccine Act’s severity requirement in this case, Petitioner must show that
D.A. suffered residual effects of his alleged herpes zoster infection beyond mid-October 17, 2019
(assuming an onset of sometime in the middle of April 2019—anywhere between April 13th to
15th). However, the record as it currently stands establishes sequelae only through late April 2019.
At most, a single record from July 2019 suggests a treater opined that the rash was attributable to
the vaccine—but not that at that time the rash continued to exist or had resulted in any secondary
sequelae. And even evidence of a rash in July 2019 still leaves three months before the severity
cut-off.
Petitioner has not substantiated the existence of residual effects of D.A.’s alleged vaccine-
caused VZV infection with any other evidence warranting weight. This includes the recently-filed
photographs. This category of evidence has largely not been adequately authenticated, making it
difficult to deem foundationally its overall probative value. But even if the photos are authentic
and accurately depict D.A.’s skin “status” as of their alleged dates, the contents of the photos are
very difficult to ascribe to the purported VZV infection and rash experienced in 2019—nearly six
years before the photos were taken (in some cases). And this evidence is not itself corroborated
with medical record proof that these alleged images of persistent rash are in fact likely associated
with the April 2019 event. At bottom, too much time has passed, with no evidence of treatment for
the rash (and in a record replete with instances in which D.A. was treated for significantly more
serious concerns—thus establishing that his parents would not neglect health concerns of any kind
where he is concerned).
I have in other cases noted the possibility that a varicella-containing vaccine could cause
or reactivate a VZV infection.7 See, e.g., Schilling v. Sec'y of Health & Hum. Servs., No. 16-527V,
2022 WL 1101597, at *17–18 (Fed. Cl. Spec, Mstr. Mar. 17, 2022). That kind of infection could
have a variety of sequelae not limited to merely a rash. Riley v. Sec'y of Health & Hum. Servs., No.
15-104V, 2021 WL 4592821, at *18 (Fed. Cl. Spec. Mstr. Aug. 31, 2021) (noting that the
symptoms of a VZV infection include fever, malaise, rash, secondary bacterial infections, and
neurologic impacts such as encephalitis). In this case, however, the only evidence of the VZV
reaction was the rash, and it appears on this record to have been wholly self-limiting. Thus, severity
cannot be met (assuming the vaccine was even causal of the rash).
7 Indeed, there is a Table claim covering that precise kind of claim. § 14(a)(X)(B)–(C).
9

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CONCLUSION
The Vaccine Act prohibits me from finding a petitioner entitled to compensation based
upon a petitioner’s claims alone. Section 13(a). To date, and despite ample opportunity, Petitioner
has failed to provide preponderant evidence that D.A. suffered the residual effects of her alleged
injury for more than six months or suffered an in hospital surgical intervention. Section
11(c)(1)(D).
Petitioner was informed that failure to provide preponderant to satisfy the Vaccine Act’s
severity requirement would be treated as either a failure to prosecute this claim or as an inability
to provide supporting documentation for this claim. Accordingly, this case is DISMISSED for
insufficient evidence. The Clerk of Court shall enter judgment accordingly.8
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8 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.
10