VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-01528 Package ID: USCOURTS-cofc-1_22-vv-01528 Petitioner: Ebony Henderson Filed: 2022-10-13 Decided: 2026-01-11 Vaccine: influenza Vaccination date: 2019-10-13 Condition: right shoulder/arm injury alleged as SIRVA Outcome: dismissed Award amount USD: AI-assisted case summary: Ebony Henderson, an adult, received an influenza vaccination on October 13, 2019. She subsequently developed right arm and shoulder pain, which she attributed to the vaccination and claimed as a Shoulder Injury Related to Vaccine Administration (SIRVA). The medical records indicated that Henderson had a history of right shoulder pain and other medical conditions prior to the vaccination. She also had a peripheral intravenous (IV) line placed in her right arm the day before the vaccination, and she reported pain associated with the IV insertion. Henderson's treating physicians and medical records did not consistently attribute her symptoms to the flu vaccination, often suggesting alternative causes such as the IV insertion or deep venous thrombosis (DVT). While Henderson later reported her belief that the vaccination caused her symptoms, her medical providers did not agree, and she did not present an expert medical opinion to support her claim. The Special Master found that Henderson did not meet the criteria for a Table SIRVA, nor did she establish causation-in-fact for an off-Table injury, concluding that her symptoms were more likely explained by the IV insertion and subsequent DVT. The case was dismissed for failure to meet the burden of proof. Henderson filed a Motion for Review, which was also dismissed, primarily due to being untimely filed, but also on the merits, affirming the Special Master's decision that the evidence did not support a vaccine-related injury. Theory of causation field: Influenza vaccine on October 13, 2019, adult exact age not stated, alleged right SIRVA/arm injury. DISMISSED. The record described a flu shot after a peripheral IV the day before, right arm pain, DVT-related concerns, counsel withdrawal, and pro se litigation. Special Master Corcoran dismissed the claim after petitioner did not establish entitlement. Judge Meriweather denied review on January 11, 2026; public reissue February 28, 2026 had no redactions. Fee decision did not change merits outcome. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_22-vv-01528-cl-extra-10848529 Date issued/filed: 2025-04-21 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10381941 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1528V Special Master Horner EBONY HENDERSON, Filed: March 27, 2025 Petitioner, v. Reissued for Public Availability: April 21, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jessica Wallace, Siri & Glimstad, LLP, Aventura, FL, for petitioner. Mitchell Jones, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1 On October 13, 2022, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq. (2012) (“Vaccine Act”).2 (ECF No. 1.) Petitioner alleged that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccination of October 13, 2019. (Id.) Petitioner initially filed this action as a pro se litigant; however, petitioner’s counsel, Ms. Wallace, became counsel of record about two months after the case was initially filed. (ECF No. 13.) On March 25, 2025, petitioner’s current counsel filed a motion to withdraw, citing irreconcilable differences between attorney and client with respect to how to proceed. (ECF No. 54.) In anticipation of her withdrawal from the case, Ms. Wallace filed a motion for an award of interim attorneys’ fees and costs. (ECF No. 51.) She seeks a total of $36,015.77 for interim attorneys’ fees and costs, including $34,371.90 in attorneys’ fees and $1,643.87 for costs. (Id. at 25.) In his response to the motion, respondent asserts that “[n]either the Vaccine Act nor Vaccine Rule 13 requires respondent to file a response to a request by a petitioner for an award of attorneys’ fees and costs.” 1 Pursuant to Vaccine Rule 18(b), this Decision was initially filed on March 27, 2025, and the parties were afforded 14 days to propose redactions. The parties did not propose any redactions. Accordingly, this Decision is reissued in its original form for posting on the court’s website. 2 Within this decision, all citations to § 300aa will be to the relevant sections of the Vaccine Act at 42 U.S.C. § 300aa-10, et seq. 1 (ECF No. 55, p. 1.) Respondent defers to the special master with respect to both the appropriateness and reasonable amount of any award of interim attorneys’ fees and costs. (Id. at 2, 4.) Petitioner filed a brief reply on March 27, 2025. (ECF No. 56.) Thus, petitioner’s motion is now ripe for resolution. For the reasons discussed below, petitioner’s motion is GRANTED, and interim attorneys’ fees and costs are awarded in the requested amount. Section 15(e)(1) of the Vaccine Act allows for the special master to award “reasonable attorneys’ fees, and . . . other costs.” § 300aa-15(e)(1)(A)-(B). Petitioners are entitled to an award of reasonable attorneys’ fees and costs if they are entitled to compensation under the Vaccine Act or, even if they are unsuccessful, if the special master finds that the petition was filed in good faith and with a reasonable basis. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). I conclude that this case was filed in good faith and with a reasonable basis. Although I previously provided guidance within a Rule 5 Order explaining why it preliminarily appears petitioner will be unable to preponderantly support her claim (ECF No. 44, pp. 3-4), counsel’s interim fee motion stresses that the standard for assessing whether a claim had a reasonable basis (i.e. a showing of “more than a mere scintilla” of evidence) is lower than the preponderant standard for determining entitlement and that petitioner did experience shoulder pain around the time of her vaccination for which she did ultimately have an orthopedic evaluation. (ECF No. 51, pp. 20-22 (quoting Cottingham v. Sec’y of Health & Human Servs., 971 F.3d 1337, 1346 (Fed. Cir. 2020)).) In any event, respondent has not objected to petitioner’s motion on the basis of any challenge to either petitioner’s good faith in asserting her claim or the reasonable basis for the filing of her petition. Vaccine Rule 13(a)(3) (“The failure of respondent to identify with particularity any objection to a request for attorneys’ fees and costs may be taken into consideration by the special master in the decision.”). Additionally, the Federal Circuit has concluded that interim fee awards are permissible and appropriate under the Vaccine Act. Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1374-75 (Fed. Cir. 2010); Avera, 515 F.3d at 1352. In Avera, the Federal Circuit stated that “[i]nterim fees are particularly appropriate in cases where proceedings are protracted and costly experts must be retained.” 515 F.3d at 1352. In Shaw, the Federal Circuit clarified that, “[w]here the claimant establishes that the cost of litigation has imposed an undue hardship and there exists a good faith basis for the claim, it is proper for the special master to award interim attorneys’ fees.” 609 F.3d at 1375. The fact that an attorney is withdrawing may be a circumstance that warrants an interim award, but it is not necessarily so. Compare Wood v. Sec’y of Health & Human Servs., 105 Fed. Cl. 148, 154 (2012), with McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 302 (2011). Here, I exercise my discretion to award interim attorneys’ fees and costs in light of counsel’s departure from the case. The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. Avera, 515 F.3d at 1347. It is “well within the special master’s discretion” to determine the reasonableness of fees. Saxton 2 v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993); see also Hines ex rel. Sevier v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991) (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys’ fees and costs.”). Special masters can reduce a fee request sua sponte, without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). However, “[t]he failure of respondent to identify with particularity any objection to a request for attorney’s fees and costs may be taken into consideration by the special master in the decision.” Vaccine Rule 13(a)(3). Special masters need not engage in a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). Instead, they may rely on their experience with the Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 485 (1991), aff’d, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . . [v]accine program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 3 F.3d at 1521. Applications for attorneys’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Such applications should not include hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Attorneys’ costs must be reasonable as well. See Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992) (“The conjunction ‘and’ conjoins both ‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’ necessarily modifies both. Not only must any request for reimbursement of attorneys’ fees be reasonable, so also must any request for reimbursement of costs.”), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). The undersigned has reviewed the attorney billing records submitted with petitioner’s request. (ECF No. 52-1, pp. 1-32.) I do not see any reason to reduce the hourly rates requested or the hours billed.3 I have also reviewed the requested costs and find them to be reasonable and sufficiently documented. (Id. at 33-43.) 3 The requested hourly rates through 2024 are consistent with what has previously been awarded. E.g. W.R. v. Sec’y of Health & Human Servs., No. 20-1401V, 2023 WL 8187303 (Fed. Cl. Spec. Mstr. Oct. 23, 2023); Jett-Crawford v. Sec’y of Health & Human Servs., No. 21-2157V, 2024 WL 5320023 (Fed. Cl. Spec. Mstr. Dec. 18, 2024). However, counsel represents that this is her first request for attorneys’ fees relating to work performed in 2025, for which she requests compensation at a rate of $359 per hour for herself and $195 per hour for her paralegals. (ECF No. 51, p. 23.) OSM has not yet published an hourly rate fee schedule for 2025. Accordingly, I do not reach a conclusion as to counsel’s requested rate for 2025 to be applied in future cases. However, for purposes of this motion, I find that the overall amount sought for attorneys’ fees is reasonable in light of the work performed in this case and counsel’s requested rate for 2025 appears presumptively reasonable in that it accords with the fee schedule for 2024. Specifically, Ms. Wallace represents that she has seven years of legal experience and the 2024 rate range for attorneys with 4-7 years of experience is $305 -- $407. The allowable rates for paralegals for 2024 are $170 -- $197. See https://www.uscfc.uscourts.gov/sites/cfc/files/osm_hourly_rate_2024.pdf. 3 Accordingly, the petitioner is awarded interim attorneys’ fees and costs in the total amount of $36,015.77, to be paid through an ACH deposit to petitioner’s counsel, Ms. Jessica Wallace’s IOLTA account for prompt disbursement. The clerk of the court shall enter judgment in accordance herewith.4 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner 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. 4 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_22-vv-01528-1 Date issued/filed: 2025-08-12 Pages: 14 Docket text: PUBLIC DECISION (Originally filed: 7/16/2025) regarding 67 DECISION of Special Master. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made. Petitioner served via e-mail on 8/13/2025 (ep). -------------------------------------------------------------------------------- Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 1 of 14 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1528V Special Master Horner EBONY HENDERSON, Filed: July 16, 2025 Petitioner, v. Reissued for Public Availability: August 12, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Ebony Henderson, Erie, PA, pro se petitioner. Mitchell Jones, U.S. Department of Justice, Washington, DC, for respondent. DECISION1 On October 13, 2022, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa, et seq. (2012) (“Vaccine Act”),2 alleging that she suffered a right shoulder injury as a result of an influenza (“flu”) vaccination she received on October 13, 2019. (ECF No. 1.) For the reasons set forth below, I conclude that petitioner is not entitled to compensation. I. Applicable Statutory Scheme Under the National Vaccine Injury Compensation Program, compensation awards are made to individuals who have suffered injuries after receiving vaccines. In general, to gain an award, a petitioner must make a number of factual demonstrations, including showing that an individual received a vaccination covered by the statute; received it in the United States; suffered a serious, long-standing injury; and has received no previous award or settlement on account of the injury. Finally – and the key question in most cases under the Program – the petitioner must also establish a causal link between the vaccination and the injury. In some cases, the petitioner may simply demonstrate the occurrence of what has been called a “Table Injury.” That is, it may be 1 Pursuant to Vaccine Rule 18(b), this Decision was initially filed on July 16, 2025, and the parties were afforded 14 days to propose redactions. The parties did not propose any redactions. Accordingly, this Decision is reissued in its original form for posting on the court’s website. 2 Within this decision, all citations to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C. § 300aa-10, et seq. 1 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 2 of 14 shown that the vaccine recipient suffered an injury of the type enumerated in the “Vaccine Injury Table,” corresponding to the vaccination in question, within an applicable time period following the vaccination also specified in the Table. If so, the Table Injury is presumed to have been caused by the vaccination, and the petitioner is automatically entitled to compensation, unless it is affirmatively shown that the injury was caused by some factor other than the vaccination. § 300aa-13(a)(1)(A); § 300aa-11(c)(1)(C)(i); § 300aa-14(a); § 300aa-13(a)(1)(B). As relevant here, the Vaccine Injury Table lists Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a compensable injury if it occurs within ≤48 hours of administration of a flu vaccine. § 300aa-14(a), amended by 42 C.F.R. § 100.3. Table Injury cases are guided by “Qualifications and aids in interpretation” (“QAI”), which provide more detailed explanation of what should be considered when determining whether a petitioner has actually suffered an injury listed on the Vaccine Injury Table. § 300aa-14(a). To be considered a Table SIRVA petitioner must show that his/her injury fits within the following definition: SIRVA manifests as shoulder pain and limited range of motion occurring after the administration of a vaccine intended for intramuscular administration in the upper arm. These symptoms are thought to occur as a result of unintended injection of vaccine antigen or trauma from the needle into and around the underlying bursa of the shoulder resulting in an inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological injury and abnormalities on neurological examination or nerve conduction studies (NCS) and/or electromyographic (EMG) studies would not support SIRVA as a diagnosis . . . A vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests all of the following: (i) No history of pain, inflammation or dysfunction of the affected shoulder prior to intramuscular vaccine administration that would explain the alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after vaccine injection; (ii) Pain occurs within the specified time-frame; (iii) Pain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine was administered; and (iv) No other condition or abnormality is present that would explain the patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, mononeuropathies, and any other neuropathy). 42 C.F.R. § 100.3(c)(10). 2 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 3 of 14 Alternatively, if no injury falling within the Table can be shown, a petitioner could still demonstrate entitlement to an award by instead showing that the vaccine recipient’s injury or death was caused-in-fact by the vaccination in question. § 300aa-13(a)(1)(A); § 300aa-11(c)(1)(C)(ii). In particular, a petitioner must demonstrate that the vaccine was “not only [the] but-for cause of the injury but also a substantial factor in bringing about the injury.” Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321-22 (Fed. Cir. 2010) (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006). To successfully demonstrate causation-in-fact, petitioner bears a burden to show: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of proximate temporal relationship between vaccination and injury. Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). For both Table and Non-Table claims, Vaccine Program petitioners bear a “preponderance of the evidence” burden of proof. § 300aa-13(1)(a). That is, a petitioner must offer evidence that leads the “trier of fact to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the judge of the fact’s existence.” Moberly, 592 F.3d at 1322 n.2 (alternation in original); see also Snowbank Enters., Inc. v. United States, 6 Cl. Ct. 476, 486 (1984) (explaining that mere conjecture or speculation is insufficient under a preponderance standard). Proof of medical certainty is not required. Bunting v. Sec’y of Health & Human Servs., 931 F.2d 867, 873 (Fed. Cir. 1991). However, a petitioner may not receive a Vaccine Program award based solely on her assertions; rather, the petition must be supported by either medical records or by the opinion of a competent physician. § 300aa-13(a)(1). Cases in the Vaccine Program are assigned to special masters who are responsible for “conducting all proceedings, including taking such evidence as may be appropriate, making the requisite findings of fact and conclusions of law, preparing a decision, and determining the amount of compensation, if any, to be awarded.” Vaccine Rule 3(b)(1). Special masters must ensure each party has had a “full and fair opportunity” to develop the record. Vaccine Rule 3(b)(2). However, special masters are empowered to determine the format for taking evidence based on the circumstances of each case. Vaccine Rule 8(a); Vaccine Rule 8(d). Special masters are not bound by common law or statutory rules of evidence but must consider all relevant and reliable evidence in keeping with fundamental fairness to both parties. Vaccine Rule 8(b)(1). The special master is required to consider “all [] relevant medical and scientific evidence contained in the record,” including “any diagnosis, conclusion, medical judgment, or autopsy or coroner’s report which is contained in the record regarding the nature, causation, and aggravation of the petitioner’s illness, disability, injury, condition, or death,” as well as the “results of any diagnostic or evaluative test which are contained in the record and the summaries and conclusions.” § 300aa-13(b)(1)(A). The special master is required to consider all the relevant evidence of record, draw plausible 3 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 4 of 14 inferences, and articulate a rational basis for the decision. Winkler v. Sec’y of Health & Human Servs., 88 F.4th 958, 963 (Fed. Cir. 2023) (citing Hines ex rel. Sevier v. Sec’y of Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991)). II. Procedural History Petitioner initially filed this action pro se; however, counsel entered an appearance on petitioner’s behalf in December of 2022. Thereafter, petitioner filed medical records marked as Exhibits 1-9 between February and August of 2023. Respondent then filed his report recommending against compensation in December of 2023. (ECF No. 34.) Based on review of the medical records, the government contended that (1) petitioner’s condition was not limited to the shoulder in which she received her vaccination, as required by the Table criteria for SIRVA, and (2) that an IV insertion, occurring at about the same time, would alternatively explain her symptoms. (Id. at 11-12.) Respondent further observed that the medical records contained no diagnosis of a cognizable injury and no medical opinion that would support vaccine- causation of petitioner’s symptoms. (Id. at 13-14.) Petitioner was ordered to file an expert report supporting her claim in February of 2024. Although updated orthopedic medical records were filed (Ex. 10), no expert medical opinion was presented. As of August 2024, petitioner’s counsel advised the court of her intention to withdraw as counsel of record. (ECF No. 41.) In response, a Rule 5 Order was issued, which I directed counsel to discuss with petitioner. (ECF No. 44.) In that order, I explained why petitioner was unlikely to prevail without presentation of an expert opinion and, further, why I felt it was unlikely petitioner would be able to secure a credible expert opinion based on the history contained in her medical records. (Id. at 3-4.) I initially permitted petitioner a 60-day continuance to locate alternative counsel, which she was apparently unable to do, but then in January of 2025, reset petitioner’s filing deadline for an expert report, giving petitioner until March 24, 2025, to file an expert report and advising that she must meet this filing deadline regardless of whether her current counsel departed the case. (ECF No. 48.) I advised that if no expert report were filed, then I would issue an order to show cause why this case should not be dismissed. (Id.) Petitioner’s counsel confirmed petitioner was provided a copy of that order. (ECF No. 49.) Petitioner’s March 24, 2025 filing deadline passed without the filing of any expert report. Instead, on March 25, 2025, petitioner’s former counsel moved to withdraw (ECF No. 54), and I granted that motion. (ECF No. 60.) Accordingly, an order to show cause was issued on April 1, 2025, giving petitioner three months, until June 30, 2025, to file an expert medical opinion as well as a brief pursuant to Vaccine Rule 8(d) explaining why petitioner believed she is entitled to compensation. (ECF No. 62.) Petitioner was advised that “I intend to decide this case based on the record as it then exists. If petitioner does not meaningfully develop the record of this case, my decision will result in dismissal.” (Id. at 5.) 4 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 5 of 14 In response to the order to show cause, petitioner filed 27 photographs of her medical records, with yellow highlighting of certain notations. (ECF No. 66.) All of the photographed records are from either October of 2019 or August of 2022 and all are records that have been previously filed. Petitioner did not file any expert medical opinion or a brief supporting her belief that she is entitled to compensation. In light of the above, I have determined that the parties have had a full and fair opportunity to present their cases and that it is appropriate to resolve entitlement on the existing record. See Vaccine Rule 8(d); Vaccine Rule 3(b)(2); see also Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d 1362, 1366 (Fed. Cir. 2020) (noting that “special masters must determine that the record is comprehensive and fully developed before ruling on the record”). III. Factual History a. Pre-Vaccination History Petitioner’s pre-vaccination medical history is significant for right finger fracture, right arm tendonitis, hypertension, anemia, asthma, chest pain, nonischemic cardiomyopathy, cardiomegaly, and congestive heart failure. (Ex. 6, pp. 3-57; Ex. 9, pp. 518-22, 540-43, 769-74.) Petitioner also reported a prior history of three “mini-strokes” in 2014, resulting in right-sided weakness, two hospitalizations, and six months of rehabilitation. (Ex. 7, p. 33.) In 2017, she was still presenting with a limp. (Id.) On August 14, 2019, petitioner presented to the emergency department at the University of Pennsylvania Medical Center with complaints of neck pain and right shoulder pain. (Ex. 9, pp. 847-52.) She described “constant sharp/aching sensation in the lateral side of the right shoulder and in the right side of her neck with no radiation.” (Id. at 848.) The pain was aggravated by movement. (Id.) At the onset of her shoulder pain, petitioner also experienced dizziness, headache, and tingling in the right arm; however, these symptoms had since resolved. (Id.) Petitioner again reported her history of “mini strokes” and indicated that her current symptoms were consistent with the symptoms that she “typically gets with her mini strokes.” (Id.) On physical exam, petitioner’s pain was “reproducible with abduction and external rotation of the right glenohumeral joint.” (Id. at 849-50.) Her exam, testing, and imaging were otherwise unremarkable. (Id. at 849-51.) Petitioner was discharged home with a diagnosis of musculoskeletal right shoulder pain, a prescription for short a course of anti- inflammatory medication, and a home exercise plan for her shoulder. (Id. at 851.) On September 25, 2019, petitioner returned to the emergency department with intermittent dizziness, vision changes, and neck pain that was primarily present on the sides of her neck and aggravated with movement. (Ex. 3, p. 374.) Following an unremarkable physical exam and further testing, petitioner’s treaters suspected that her pain was “likely musculoskeletal and neck.” (Id. at 375-76.) She was discharged home with a prescription for a topical gel to treat her neck pain. (Id. at 376-77.) 5 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 6 of 14 b. Post-Vaccination History Petitioner presented to the emergency department on October 12, 2019, with complaints of headache, blurred vision, slurred speech, numbness/tingling in her right upper extremity, and difficulty walking due to imbalance. (Ex. 3, p. 99.) Petitioner was admitted for further evaluation of stroke-like symptoms. (Id. at 101.) Her musculoskeletal exam showed normal range of motion and strength with no tenderness, but her neurologic exam showed decreased sensation in the right upper and lower extremities. (Id. at 99.) An MRI of the cervical spine revealed mild degenerative changes and foraminal stenosis, and an MRI of the brain showed “[s]ome small scattered white matter hyperintensities mostly right hemisphere, nonspecific.” (Ex. 9, pp. 1008-09.) Beginning on October 12, 2019, petitioner had a peripheral intravenous (“IV”) line placed in her right forearm. (Ex. 3, pp. 339-40.) On October 13, 2019, petitioner received the subject flu vaccine in her right deltoid. (Id. at 7.) About an hour later, petitioner had an occupational therapy assessment that noted bilateral range of motion and strength within normal limits. (Id. at 342-46.) The peripheral IV line was removed on October 14, 2019. (Id. at 339-40.) The listed reason for removal is “painful” and “[n]o longer needed.” (Id.) Petitioner was discharged on October 15, 2016, with diagnoses of right-sided numbness and nonischemic cardiomyopathy. (Id. at 86-90.) However, petitioner returned to the emergency department at the University of Pennsylvania Medical Center on October 15, 2019, with complaints of “right arm pain for several days.” (Ex. 9, pp. 1085-86.) The history of present illness notes that petitioner “was admitted on Saturday and had an IV placed at that time. Patients states that when the IV was placed she had a sharp shooting pain up her arm. This did not go away and she is still complaining of similar pain today.” (Id. at 1086.) Petitioner described her intermittent pain as sharp, shooting, and radiating to her “head and entire body,” but she denied any numbness, tingling, or decreased grip strength. (Id.) She denied feeling pain on presentation, and she was noted to have no tenderness in the area of the IV site and no swelling or erythema. (Id. at 1086, 1088.) Petitioner was advised that her symptoms were likely the result of “injury to the nerve from IV insertion.” (Id. at 1088.) She was offered pain medication but advised that her injury would likely take some time to heal. (Id.) Petitioner was ultimately discharged home with a diagnosis of right arm pain. (Id.) Later that same day, petitioner presented to the emergency department at Saint Vincent Hospital, complaining of right arm pain. (Ex. 8, p. 10.) She attributed her arm pain to an IV placement and stated that she “thinks they struck a nerve.” (Id.) She described worsening pain affecting her “whole arm with any sort of movement,” as well as intermittent chest pain. (Id. at 10, 14.) A physical exam revealed right arm pain with movement. (Id. at 11-12.) Petitioner underwent a CT angiogram of her chest that showed no evidence of pulmonary embolism and a chest x-ray that revealed no acute pulmonary abnormalities. (Id. at 29, 61-62.) However, a vascular ultrasound revealed right upper extremity brachiocephalic deep venous thrombosis (“DVT”) that was associated with catheter placement. (Id. at 29, 35, 64.) Petitioner was given IV Heparin 6 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 7 of 14 and admitted for further evaluation and treatment for DVT. (Id. at 29, 35.) Because she presented with chest pain, petitioner was also monitored on telemetry, despite her EKG results showing no ischemic changes. (Id. at 29, 35.) The admitting physician believed that her chest pain was likely related to her upper extremity DVT and to motion of her right arm. (Id. at 35.) A subsequent physical exam showed right upper extremity edema and tenderness to palpation around the biceps, especially over the brachiocephalic and lateral biceps. (Id. at 32.) Petitioner was discharged home on October 17, 2019, with a three-month course of anticoagulation (Xarelto) “for what appears to be a provoked DVT in the setting of catheterization of the right upper extremity after recent hospitalization.” (Id. at 37-42.) She was directed to follow up with her primary care provider. (Id. at 39.) On October 19, 2019, petitioner again presented to the emergency department at Saint Vincent Hospital, this time complaining of shortness of breath with right-sided upper chest and arm pain. (Ex. 8, p. 219.) She reported that she noticed right-sided pain in her anterior and lateral chest walls shortly after waking up that morning. (Id.) Her pain was aching in character, aggravated by breathing, and associated with shortness of breath and lightheadedness. (Id.) Petitioner’s chest x-ray appeared stables, and her EKG again showed no ischemic changes. (Id. at 223.) She was discharged home and directed to follow up with her primary care provider and a cardiologist. (Id.) However, petitioner returned to the emergency department about a month later, on December 18, 2019, with complaints of lightheadedness, nausea, blurry vision, and cough. (Id. at 301-02.) She denied shortness of breath and chest pain, tightness, or discomfort. (Id. at 302.) She was subsequently discharged home in a stable condition with no clear cause for her symptoms. (Id. at 306-07.) There is no mention of arm pain during this encounter. On January 3, 2020, petitioner underwent a venous doppler ultrasound of the right upper extremity, which showed “[n]o evidence of any deep or superficial vein thrombosis in the right upper extremity.” (Ex. 6, p. 165.) On January 13, 2020, petitioner presented to nurse practitioner Christopher Cain at her primary care office. (Ex. 6, pp. 64-72.) Petitioner reported intermittent pain and swelling in her right arm, and that she was still taking Xarelto. (Id. at 64.) On exam, petitioner’s arm appeared normal. (Id. at 69-70.) Petitioner’s arm remained normal in appearance on subsequent exams during follow up primary care encounters on January 29, January 31, and February 3, 2020. (Id. at 73-97.) She was continued on Xarelto, and provided at-home exercises and stretches. (Id. at 78, 86-87, 94.) Petitioner underwent a chest x-ray on February 4, 2020, which showed “[m]ild cardiomegaly similar to the prior study” and “[n]o acute pulmonary process.” (Ex. 6, p. 168.) She had a pacemaker implanted in February of 2020, and a subsequent chest x- ray showed no evidence of acute cardiopulmonary disease. (Id. at 488-89; Ex. 8, p. 166.) There was no mention of arm pain during her primary care encounters on February 18 and March 3, 2020. (Ex. 6, pp. 98-114.) On June 26, 2020, petitioner presented to nurse practitioner Cain, complaining of right arm pain. (Ex. 6, p. 115.) Her pain was reportedly aggravated by bending, lifting, 7 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 8 of 14 and movement. (Id.) Although she denied weakness, she described not being able to use her right arm for more than 20 minutes. (Id.) Nurse practitioner Cain noted petitioner’s relevant medical history, including her right-sided DVT secondary to catheter placement in October and follow up ultrasound that was negative for DVT in January. (Id.) He specifically noted, “Pain, functional difficulties since around this time.” (Id.) On exam, petitioner’s right arm, wrist, and hand appeared normal. (Id. at 120-21.) Nurse practitioner Cain assessed petitioner with chronic DVT of the brachial vein of the right upper extremity and right upper extremity tendinopathy secondary to the DVT. (Id. at 121.) He specifically noted that the tendinopathy “was felt to be provoked by problem that occurred with IV access back in October 2019,” and that petitioner’s right extremity strength, range of motion, sensation, and circulation were normal on exam. (Id.) Petitioner denied any numbness or tingling and was referred to a hand surgeon for further evaluation. (Id.) On August 7, 2020, petitioner presented to the emergency department at Saint Vincent Hospital with complaints of right arm pain and swelling. (Ex. 8, pp. 976-77.) She also reported slight tingling and numbness, and she described an episode of chest pain and shortness of breath that “felt different” when compared to her typical symptoms and “was right-sided and radiate[d] down her right arm.” (Id.) Petitioner stated that her symptoms began “a couple weeks ago after using hand shears cutting her bushes,” but that “today it changed and felt similar to when she had her previous DVT.” (Id.) After further questions, petitioner admitted that “she was using hand shears [a] couple days ago and that her pain started the day after.” (Id. at 981.) Petitioner’s physical exam, EKG, and chest x-ray was unremarkable. (Id. at 976, 981.) A vascular ultrasound showed a filling defect in the brachial vein, but no clot was visualized. (Id. at 981.) It was suspected that these findings related to her prior DVT and did not evidence a new DVT. (Id.) Petitioner was ultimately discharged home and advised to follow up with her primary care provider. (Id.) Petitioner had a primary care encounter on August 13, 2020. (Ex. 6, p. 133.) Sean Leonard, D.O., recorded a history of present illness that included right arm nerve pain and DVT following IV placement during an October 2019 hospitalization. (Id.) Petitioner reported that her right arm pain had “been exacerbated over the last 2 weeks after using hedge shears.” (Id.) She also reported that she previously presented to the emergency department for her symptoms, and after a normal work up, she was told that her pain was likely due to nerve damage in her right arm. (Id.) Dr. Leonard diagnosed neuropathy of the right upper extremity, ordered an EMG of the right arm, and prescribed gabapentin. (Id. at 140.) His assessment also included chronic DVT of the brachial vein of the right upper arm, and petitioner was continued on Xarelto. (Id.) On September 14, 2020, petitioner presented to hand surgeon Mary Beth Cermak, M.D., for evaluation of right arm nerve damages that “all started after an IV insertion [on] October 12, 2019.” (Ex. 1, pp. 27-28.) She complained of forearm pain, and described shocking pain down her arm, along with numbness and tingling in the median nerve distribution. (Id. at 28.) On exam, petitioner had some mild swelling of her forearm and a positive Tinel’s test at the wrist with no thenar atrophy. (Id.) X-rays 8 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 9 of 14 of her right wrist and forearm were normal with no fractures, malalignment, or osseous abnormality. (Id.) Dr. Cermak’s impression was “[p]ossible right carpal tunnel syndrome versus median nerve injury.” (Id.) She ordered an MRI of petitioner’s right arm and wrist. (Id.) Petitioner’s next primary care encounter was on January 27, 2021. (Ex. 6, p. 152.) Nurse practitioner Cain recorded a pertinent history of present illness that included sharp pain in the right arm and shoulder, which was associated with swelling, tingling, and weakness, and aggravated by movement and pushing. (Id.) She also recorded a one-month history of aching, burning, and swelling in the right foot. (Id.) Her impression included “[p]rovoked clot 10/2019, complication from IV line.” (Id. at 158.) She specifically noted that petitioner’s “[a]rm today is tender with very minimal swelling but this has been consistent since clot, even at time of negative ultrasound.” (Id.) Another ultrasound was ordered, and petitioner was referred to a hematologist. (Id.) Regarding petitioner’s right upper extremity neuropathy, nurse practitioner Cain noted a positive response to gabapentin and directed petitioner to continue following with Dr. Cermak. (Id. at 159.) Petitioner’s right foot pain was noted as possibly “consistent with plantar fasciitis based on symptoms and heel tenderness on exam,” and she was referred to a podiatrist. (Id. at 160.) On February 19, 2021, petitioner presented to certified registered nurse practitioner April Sweeney to establish new care. (Ex. 9, p. 63.) In pertinent part, petitioner reported that “she began to experience nerve damage to her Right upper extremity and she feels it is from either a previous influenza injection she had [been] given in [her] deltoid or possibly an IV that she had in her right arm.” (Id.) This is the first time that petitioner implicated her flu vaccination as a potential cause of her right arm symptoms. Petitioner had a normal range of motion on physical exam, but she refused a further flu vaccination. (Id. at 63, 66.) Nurse practitioner Sweeney’s assessment included acute thrombosis of the right upper extremity. (Id. at 67-68.) Petitioner was advised to continue taking Xarelto as prescribed. (Id. at 68.) A venous ultrasound on February 22, 2021, again showed no evidence of any deep or superficial vein thrombosis in the right upper extremity. (Ex, 6, p. 164.) On May 15, 2021, petitioner presented to the emergency department at Saint Vincent Hospital. (Ex. 9, p. 129.) She described a three-day history of “increasing pain in the biceps area up into her right shoulder and up into the anterior chest on the right side.” (Id.) It was noted that petitioner’s “[p]ain is achy and somewhat intermittent. Moderate to severe. Deep breathing seems to make it a little bit worse[;] some positions make it a little bit worse as well. Nothing seems to make it much better but Tylenol does help a little bit.” (Id.) Her chest pain was also associated with shortness of breath. (Id.) It was further noted that petitioner “had some intermittent pains in that arm since she had the DVT in 2019. She states over the past 3 days this is significantly changed and she feels like there is more swelling and the pain has moved into the chest.” (Id. at 133.) No arm swelling was observed on physical exam. (Id.) Petitioner was not suspected to have ischemic heart disease or DVT. (Id.) She was subsequently discharged home and advised to follow up with her primary care provider. (Id.) 9 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 10 of 14 Petitioner had a primary care encounter with nurse practitioner April Cass on November 19, 2021. (Ex. 9, p. 194.) During this encounter, petitioner reported right arm pain that “initially presented in 2019 after receiving a flu shot to her right bicep rather than her deltoid.” (Id.) She described weakness when lifting anything heavier than a gallon of milk and pain that radiated down to her wrist, but she denied any numbness or tingling. (Id.) Nurse practitioner Cass noted that an EMG in March of 2021 showed no evidence of peripheral neuropathy, plexopathy, radiculopathy, or myopathy, and that a venous ultrasound in May of 2021 was negative for DVT. (Id.) On physical exam, petitioner had normal range of motion and some tenderness without swelling in her right upper arm. (Id. at 198.) Nurse practitioner Cass suggested Tylenol and heat to treat petitioner’s right arm pain, and she referred petitioner to physical therapy. (Id. at 201.) Petitioner presented for an initial physical therapy evaluation on December 2, 2021. (Ex. 2, pp. 54-55.) Petitioner reported right arm pain, swelling, numbness, and tingling “following a blood clot that occurred after she received a vaccine on October 13, 2019.” (Id. at 54.) She also reported “nerve damage in her arm secondary to the blood clot.” (Id.) She described weakness, including difficulty lifting and carrying objects for more than 15 minutes and opening bottles, and throbbing pain when laying on her right side. (Id.) The pain was localized to her right biceps while the numbness and tingling radiated down her entire arm and into her fingers. (Id.) She rated her pain a 3 out of 10 at best and an 8 out of 10 at worst. (Id.) During this encounter, petitioner rated her pain a 3 out of 10. (Id.) On exam, petitioner was noted to demonstrate weakness in her bilateral upper extremities, pain in her right biceps and lower arm, numbness and tingling from her elbow to her hand, and difficulty completing activities of daily living and functional activities. (Id. at 55.) Petitioner was directed to attend two physical therapy sessions per week for eight weeks. (Id. at 56.) From December of 2021 until March of 2022, petitioner attended 22 physical therapy sessions. (Ex. 2.) Throughout her physical therapy, petitioner reported pain, discomfort, and tightness at various times affecting her chest and her right biceps, shoulder, elbow, and forearm. (Id. at 4-56.) She also reported numbness and tingling down her entire arm and fingers. (Id.) Petitioner was subsequently discharged from physical therapy due to insurance issues. (Id. at 3.) She returned for 4 additional physical therapy sessions between May 19 and July 5, 2022. (Id. at 58-73.) Upon returning to physical therapy, petitioner reported continued shoulder pain as a result of her vaccination. (Id. at 70.) She stated that her pain was aggravated by sleeping on her affected shoulder and “using it to turn, push, pull, or lift anything.” (Id.) As of May 19, 2022, petitioner reported that her pain was localized to her right biceps or biceps tendon and no longer affected her arm or forearm. (Id. at 67.) She noted improved pain and range of motion in her right shoulder as of July 5, 2022. (Id. at 61.) However, she was again discharged on November 1, 2022, due to insurance issues. (Id. at 57, 63.) On May 2, 2022, petitioner had a primary care encounter, during which she reported a three-day history of left-sided neck pain of an unknown origin. (Ex. 9, pp. 10 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 11 of 14 352-54.) She also reported a two-day history of abdominal cramping with an unclear etiology. (Id.) Her primary care provider suggested that her symptoms may be stress related. (Id. at 353-54.) There is no mention of right shoulder symptoms during this encounter. On August 15, 2022, petitioner returned to Dr. Cermak with “a chief complaint of arm pain, involving the right anterior distal upper arm.” (Ex. 1, p. 3.) She reported that her pain began “after IV insertion 10/19/19 and after flu shot was given.” (Id.) She further reported that The pain has been present for 3 years. The right anterior distal upper arm pain occurs intermittently. The right anterior distal upper arm pain is described as worse with lifting heavy objects, worse with overhead activity, cramp-like, radiating, and throbbing and associated with arm pain, hand numbness, hand tingling, limited range of motion, and swelling. (Id.) A physical exam of the right upper extremity showed thenar atrophy, tenderness over the biceps tendon, and diminished sensation in the fingers. (Id.) Dr. Cermak’s impression included median nerve injury to the right upper arm, biceps tendinitis on the right acromioclavicular joint, and osteoarthritis. (Id.) Dr. Cermak suggested over-the- counter anti-inflammatory medication for petitioner’s median nerve injury and ordered an MRI to assess petitioner’s right biceps tendinitis. (Id. at 3-4.) Petitioner underwent an MRI of her right shoulder on October 4, 2022, which revealed a partial thickness tear of the supraspinatus tendon. (Ex. 3, p. 6.) The following day, on October 5, 2022, petitioner presented to family practitioner Mary Lasher, D.O., to establish care. (Ex. 9, p. 401.) Petitioner reported that she had been told that her “veins are all damaged from DVT in right arm, swelling. Clot was either caused by flu shot (given anterior arm) or IV.” (Id.) On physical exam, petitioner’s right hand and forearm were cooler than her left side. (Id. at 404.) Petitioner was referred to a vascular surgeon. (Id. at 400.) On October 13, 2022, petitioner returned to Dr. Cermak for a review of her October 4, 2022 MRI results. (Ex. 1, p. 5.) Dr. Cermak assessed petitioner with a partial right-sided rotator cuff tear, and petitioner was referred to an orthopedist for further evaluation. (Id.) Thereafter, on October 24, 2022, petitioner presented to orthopedist David German, M.D., right shoulder pain that “began after a flu injection in 2019.” (Ex. 5, p. 377.) Petitioner also reported developing DVT in the right arm “around that time.” (Id.) She indicated that did not appreciate any improvement in her symptoms after her prior physical therapy sessions. (Id.) On physical exam, petitioner showed full strength and range of motion without any significant swelling, but she did have pain with overhead motion and impingement. (Id.) Petitioner underwent right shoulder x-rays during this encounter that revealed “mild acromial clavicular arthritis,” but “otherwise unremarkable appearance.” (Id. at 378.) Dr. German interpreted petitioner’s October 4, 2022 MRI as 11 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 12 of 14 showing “partial-thickness tear supraspinatus tendon, some AC joint osteoarthritis,” but “no evidence of full-thickness tear.” (Id.) He stated that “[t]here is no strong indication for any surgical intervention,” and recommended a subacromial steroid injection, which petitioner declined. (Id.) Petitioner next primary care encounter was on April 6, 2023, with Dr. Lasher, during which petitioner reported continued arm pain. (Ex. 9, pp. 432-33.) She explained that she is “very hesitant to get another injection” because “she’s fairly certain the DVT which occurred in her arm happened after she got a flu sho[t].” (Id. at 433.) She did, however, report that physical therapy was “helping” and that she was interested in returning to the orthopedist to discuss other options. (Id.) Petitioner was referred to an orthopedic surgeon for evaluation of her arm pain. (Id. at 432.) On June 6, 2023, petitioner presented to sports medicine specialist Jeffrey Kim, D.O., for evaluation of her ongoing arm pain. (Ex. 5, pp. 422-23.) Petitioner reported that she developed arm/shoulder pain “shortly” after receiving a flu shot “years ago” and that her pain has persisted. (Id. at 423.) She also reported right shoulder weakness. (Id.) She described the pain as initially diffuse about the arm but now localized to below the greater tuberosity. (Id.) On physical exam, petitioner had right shoulder tenderness and crepitus, but no swelling, reduced range of motion, or reduced strength. (Id. at 424.) Petitioner also had positive Hawkins, Empty can, and O’Brien tests. (Id. at 425.) Dr. Kim’s impression was “[c]hronic right shoulder pain in the setting of rotator cuff tendinitis with partial tear.” (Id. at 422.) He noted that this has been a longstanding issue for which petitioner has received conservative treatment. (Id.) Although he believed it to be beneficial, he also noted petitioner’s refusal to receive a steroid injection. (Id.) Instead, petitioner was started on a prednisone taper. (Id. at 422, 426.) Petitioner was also referred to an orthopedic surgeon for a second opinion. (Id. at 427.) IV. Analysis As discussed above (see Section I, supra), SIRVA is by definition a musculoskeletal injury and not a neurologic injury and, in order to demonstrate a Table SIRVA, petitioner must demonstrate four specific criteria by preponderant evidence. Among those criteria, the fourth SIRVA criterion requires that “[n]o other condition or abnormality is present that would explain the patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, mononeuropathies, and any other neuropathy).” 42 C.F.R. § 100.3(c)(10)(iv). Consideration of the fourth SIRVA criterion “requires consideration of a petitioner’s medical condition as a whole.” Record v. Sec’y of Health & Human Servs., 175 Fed. Cl. 673, 680 (2025). However, while the “other condition or abnormality” at issue must qualify as an explanation for the petitioner’s symptoms, it “need not be a better or more likely explanation.” French v. Sec’y of Health & Human Servs., No. 20-0862V, 2023 WL 7128178, at *6 (Fed. Cl. Spec. Mstr. Sept. 27, 2023). Indeed, a petitioner may fail to meet the fourth SIRVA criterion even where there is clinical evidence of an alternative condition that falls short of a definitive diagnosis. Durham v. Sec’y of Health & Human Servs., No. 17-1899V, 2023 WL 3196229, at *14 (Fed. Cl. Spec. Mstr. May 2, 2023) (noting that the regulation cites 12 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 13 of 14 “clinical evidence of” various conditions). Ultimately, where the presence of another condition is apparent, petitioner bears the burden of proving that the condition nonetheless “would not explain” her symptoms. Id. In this case, after petitioner began experiencing the symptoms she attributes to SIRVA, she repeatedly discussed shooting nerve pain in her arm that she attributed to an IV placement during a recent hospitalization. (Ex. 9, p. 1086; Ex. 8, pp. 10, 14.) Her treating physician felt she had a deep venous thrombosis (“DVT”) affecting her brachial nerve that was associated with her IV catheter placement. (Ex. 8, p. 29.) Even when nurse practitioner Cain later diagnosed right upper extremity tendinopathy, she still attributed it to the IV access. (Ex. 6, p. 121.) Beginning in 2021, petitioner did report to nurse practitioner Cass and nurse practitioner Sweeney that she felt her symptoms were due to her flu vaccination. (Ex. 9, pp. 63, 194.) However, there is no indication that either nurse practitioner agreed. (Id. at 63-68, 194-201.) Thus, the available medical opinion and available medical record evidence favors the conclusion that petitioner’s symptoms would be explained by another condition or abnormality, namely a DVT unrelated to her vaccination. To the extent petitioner herself attributed her symptoms to either nerve damage or a DVT that she nonetheless attributed to her vaccination, this is not the mechanism of injury known as SIRVA. As noted above, SIRVA is a musculoskeletal injury and not a neurologic injury. Moreover, in her earliest treatment record, petitioner specifically associated the onset of her right arm pain to her painful IV placement, which she indicated had caused “a sharp shooting pain up her arm.” (Ex. 9, p. 1086.) Because the IV placement occurred the day before her vaccination, this necessarily places onset of her condition prior to her vaccination. (Ex. 3, pp. 7, 339-40.) Petitioner was eventually diagnosed with rotator cuff tendinitis; however, this was years removed from petitioner’s flu vaccination, petitioner did have a pre-vaccination history of right shoulder symptoms, and there is no indication her physicians felt her rotator cuff tendinitis was related to her alleged SIRVA. As respondent delineated in his Rule 4 Report, petitioner was seen for neck and right shoulder pain with tingling in her right arm just two months prior to her vaccination that was diagnosed as musculoskeletal pain. (Ex. 9, pp. 847- 51.) Additionally, she had a prior history of right arm tendinitis. (Id. at 543.) I have considered the specific medical records that petitioner highlighted in response to my order to show cause; however, these highlighted records tend to underscore, rather than refute, this understanding of petitioner’s medical records. (ECF No. 66.) For example, petitioner highlighted a history of present illness from her August 15, 2022 medical encounter. Describing petitioner’s chief complaint of right arm pain, it explained that “[t]his occurred in the context of Started after IV insertion 10/12/19 and after flu shot was given and has been treated with Tylenol, which partially alleviates symptoms and Topical.” (ECF No. 66, p. 1.) This history, which occurred three years after the initial injury, is ambiguous at best in implicating petitioner’s flu vaccine as a cause of her injury and is the only notation petitioner highlighted that even mentions the flu vaccine. By contrast, she highlights multiple records attributing her arm pain to a 13 Case 1:22-vv-01528-MBH Document 68 Filed 08/12/25 Page 14 of 14 DVT she experienced after the catheter placement, including a history provided on October 16, 2019, just days after the initial onset. (Id. at 8.) Alternatively, even without meeting the specific requirements of a Table SIRVA, petitioner could still demonstrate that her injury was caused-in-fact by her vaccination, if she could demonstrate “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). However, the Vaccine Act forbids a special master from ruling in petitioner’s favor based solely on his or her assertions; rather, the petition must be supported by either medical records or by the opinion of a competent physician. § 300aa-13(a)(1). Here, however, none of petitioner’s treating physicians attributed her symptoms to her vaccination, whether as a musculoskeletal injury or as DVT-related nerve damage. Petitioner was provided an opportunity to present an expert medical opinion, but no such opinion was presented. Accordingly, there is no medical or expert opinion available to support causation-in-fact. Given all this, petitioner’s history is not compatible with a Table SIRVA and there is not preponderant evidence she suffered any injury caused-in-fact by her vaccination. Instead, the evidence preponderates in favor of a finding that nerve pain resulting from a DVT related to her IV placement was the more likely cause of the symptoms petitioner alleges to have been a SIRVA. And, although petitioner did eventually also carry a diagnosis of tendinitis, this condition predated her vaccination and there is no medical opinion in the record that would support that this condition was caused-in-fact by her vaccination. V. Conclusion Petitioner has my sympathy for the pain she has endured, and I do not doubt her sincerity in bringing this claim. However, for all the reasons discussed above, she has not met her burden of proof. Therefore, this case is dismissed.3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master 3 In the absence of a timely-filed motion for review of this Decision, the Clerk of the Court shall enter judgment accordingly. 14 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_22-vv-01528-2 Date issued/filed: 2026-02-28 Pages: 25 Docket text: JUDGE VACCINE REPORTED OPINION (PUBLIC VERSION) re: 74 Order on Motion for Review, Judge Vaccine Order/Opinion. Signed by Senior Judge Marian Blank Horn. (jm5) Service on parties made. Petitioner served on 3/2/2026 (ep). -------------------------------------------------------------------------------- Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 1 of 25 In the United States Court of Federal Claims No. 22-1528V Filed: January 11, 2026 Reissued for Publication: February 28, 20261 * * * * * * * * * * * * * * * * EBONY HENDERSON, * Petitioner, * * v. * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * Respondent. * * * * * * * * * * * * * * * * * Ebony Henderson, Erie, PA. Mitchell Jones, Trial Attorney, Torts Branch, Civil Division, United States Department of Justice. Washington, DC, for respondent. With him were Traci R. Patton, Assistant Director, Torts Branch, Civil Division, Heather L. Pearlman, Deputy Director, Torts Branch, Civil Division, C. Salvatore D’Alessio, Director, Torts Branch, Civil Division, and Brett A. Shumate, Assistant Attorney General, United States Department of Justice, Washington, DC. O P I N I O N HORN, J. This case is before the court on petitioner’s Motion for Review the decision of the Special Master. On October 13, 2022, petitioner Ebony Henderson filed a petition for compensation with the National Vaccine Injury Compensation Program (Vaccine Program), under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa- 1–300aa-34 (2018) (Vaccine Act), for a Table injury. See 42 U.S.C. § 300aa- 11(c)(1)(C)(i). Petitioner claimed that “she sustained a Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of her receipt of the Influenza vaccination” on October 13, 2019. 1 This Opinion was issued under seal on January 11, 2026. The parties did not propose any redactions to the January 11, 2026 Opinion, and the court, therefore, issues the Opinion without redactions for public distribution. Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 2 of 25 On July 16, 2025, Special Master Daniel T. Horner issued a decision finding that the petitioner was not entitled to an award of compensation because “she [petitioner] has not met her burden of proof. Henderson v. Sec’y of Health & Hum. Servs., No. 22-1528V, 2025 WL 2322052, at *11 (Fed. Cl. Spec. Mstr. July 16, 2025) (alteration added). Subsequently, on August 18, 2025, petitioner filed a Motion for Review in the United States Court of Federal Claims seeking review of the Special Master’s decision denying her claim.2 F I N D I N G S O F F A C T On October 13, 2022, petitioner filed her petition with the Office of the Special Masters.3 The October 13, 2022 petition stated in full: The above-named Petitioner requests compensation under the National Vaccine Injury Compensation Act, 42 U.S.C. § 300aa-1 et seq., for a vaccine injury to herself as specified on the Vaccine Table, 42 U.S.C. § 300aa-14. Petitioner received the Influenza vaccination on October 13, 2019. 2. Ebony Henderson asserts that she sustained a Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of her receipt of the Influenza vaccination. 3. The Influenza vaccine injury is listed on the vaccine table as a vaccine covered by the National Vaccine Injury Compensation Act. See 42 U.S.C. § 300aa-14. Ms. Henderson has suffered residual effects of the vaccine injury for more than six months. 4. Prior to the vaccination, Petitioner had a PIV [Peripheral Intravenous line] placed in her right forearm; however, she had no pain in her right arm at any time before receiving the Influenza vaccination. 5. Petitioner experienced pain in her right shoulder and arm the same day she received her Influenza vaccine, after it had been administered. 6. After complaining of right arm pain to medical staff, her PIV was moved to her left forearm, but she continued to have right shoulder and arm pain. This persisted to the point of Ms. Henderson needing to return to a different hospital the same day. 2 Motions for Review are filed in this court pursuant to 42 U.S.C. § 300aa-12 (2024) and Rule 23 of the Vaccine Rules of the United States Court of Federal Claims (2025) (Vaccine Rules). 3 Ms. Henderson’s case was originally assigned to Chief Special Master Brian H. Corcoran. Ms. Henderson’s case was reassigned to Special Master Katherine E. Oler on October 18, 2022, and then reassigned to Special Master Horner on February 13, 2024. 2 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 3 of 25 7. Petitioner was diagnosed with a blood clot in her right upper arm on October 16, 2019. She was administered blood thinners and held at the hospital for 3 days. 8. Petitioner attended physical therapy as treatment for her right shoulder and arm injury until Medicaid would no longer pay for it. 8. To this day, Petitioner continues to experience pain, swelling, tingling, and weakness in her right shoulder and arm. 9. On or about October 4, 2022, Petitioner underwent an MRI [Magnetic Resonance Imaging] of her right shoulder. The indication for the MRI was shoulder pain for 3 years. 10. Petitioner has not previously filed a petition under the Vaccine Act and has not previously collected an award or settlement of a civil action for damages secondary to receipt of the Influenza vaccine. Petitioner has a state Medicaid lien.[4] Petitioner has un-reimbursable out of pocket medical expenses as a result of her vaccine-related injury. 11. Petitioner respectfully defers providing a specific dollar amount for her compensation request pursuant to 42 U.S.C. § 300aa-11(e). Petitioner’s compensation demand includes an award to cover reasonable attorneys’ fees and costs.[5] /s/Ebony Henderson Ebony Henderson, Pro Se (alterations and footnotes added). In his decision, Special Master Horner examined petitioner’s medical history prior to her flu vaccination on October 13, 2019 in a careful recounting of the history and relevant facts to petitioner’s claim. Special Master Horner found that based on the medical records submitted: Petitioner’s pre-vaccination medical history is significant for right finger fracture, right arm tendonitis, hypertension, anemia, asthma, chest pain, 4 Ms. Henderson’s state Medicaid lien is not referenced in her filings in this court, nor discussed in Special Master Horner’s decision. 5 Petitioner filed her petition with the Office of Special Masters on October 13, 2022 pro se, however, as discussed below, she was represented by counsel during part of the proceedings before Special Master Horner. On December 22, 2022, petitioner filed a motion for Jessica Wallace to be counsel of record for petitioner, which was granted on December 23, 2022. In a March 31, 2025 Order, Special Master Horner granted petitioner’s counsel’s motion to withdraw as the attorney for Ms. Henderson. Petitioner has appeared pro se throughout the proceedings in this court. 3 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 4 of 25 nonischemic cardiomyopathy, cardiomegaly, and congestive heart failure. Petitioner also reported a prior history of three “mini-strokes” in 2014, resulting in right-sided weakness, two hospitalizations, and six months of rehabilitation. In 2017, she was still presenting with a limp. On August 14, 2019, petitioner presented to the emergency department at the University of Pennsylvania Medical Center with complaints of neck pain and right shoulder pain. She described “constant sharp/aching sensation in the lateral side of the right shoulder and in the right side of her neck with no radiation.” The pain was aggravated by movement. At the onset of her shoulder pain, petitioner also experienced dizziness, headache, and tingling in the right arm; however, these symptoms had since resolved. Petitioner again reported her history of “mini strokes” and indicated that her current symptoms were consistent with the symptoms that she “typically gets with her mini strokes.” On physical exam, petitioner’s pain was “reproducible with abduction and external rotation of the right glenohumeral joint.” Her exam, testing, and imaging were otherwise unremarkable. Petitioner was discharged home with a diagnosis of musculoskeletal right shoulder pain, a prescription for short a course of anti-inflammatory medication, and a home exercise plan for her shoulder. On September 25, 2019, petitioner returned to the emergency department with intermittent dizziness, vision changes, and neck pain that was primarily present on the sides of her neck and aggravated with movement. Following an unremarkable physical exam and further testing, petitioner’s treaters suspected that her pain was “likely musculoskeletal and neck.” She was discharged home with a prescription for a topical gel to treat her neck pain. Petitioner presented to the emergency department on October 12, 2019, with complaints of headache, blurred vision, slurred speech, numbness/tingling in her right upper extremity, and difficulty walking due to imbalance. Petitioner was admitted for further evaluation of stroke-like symptoms. Her musculoskeletal exam showed normal range of motion and strength with no tenderness, but her neurologic exam showed decreased sensation in the right upper and lower extremities. An MRI of the cervical spine revealed mild degenerative changes and foraminal stenosis, and an MRI of the brain showed “[s]ome small scattered white matter hyperintensities mostly right hemisphere, nonspecific.” Beginning on October 12, 2019, petitioner had a peripheral intravenous (“IV”) line placed in her right forearm. On October 13, 2019, petitioner received the subject flu vaccine in her right deltoid. About an hour later, petitioner had an occupational therapy assessment that noted bilateral range of motion and strength within normal limits. The peripheral IV line was removed on October 14, 2019. The listed reason for removal is “painful” and “[n]o longer needed.” Petitioner was discharged on October 15, 2016, with diagnoses of right-sided numbness and nonischemic cardiomyopathy. However, petitioner returned to the emergency department at the University of Pennsylvania Medical Center on 4 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 5 of 25 October 15, 2019, with complaints of “right arm pain for several days.” The history of present illness notes that petitioner “was admitted on Saturday and had an IV placed at that time. Patients [sic] states that when the IV was placed she had a sharp shooting pain up her arm.[6] This did not go away and she is still complaining of similar pain today.” Petitioner described her intermittent pain as sharp, shooting, and radiating to her “head and entire body,” but she denied any numbness, tingling, or decreased grip strength. She denied feeling pain on presentation, and she was noted to have no tenderness in the area of the IV site and no swelling or erythema. Petitioner was advised that her symptoms were likely the result of “injury to the nerve from IV insertion.” She was offered pain medication but advised that her injury would likely take some time to heal. Petitioner was ultimately discharged home with a diagnosis of right arm pain. Later that same day, petitioner presented to the emergency department at Saint Vincent Hospital, complaining of right arm pain. She attributed her arm pain to an IV placement and stated that she “thinks they struck a nerve.” She described worsening pain affecting her “whole arm with any sort of movement,” as well as intermittent chest pain. A physical exam revealed right arm pain with movement. Petitioner underwent a CT [Computed Tomography] angiogram of her chest that showed no evidence of pulmonary embolism and a chest x-ray that revealed no acute pulmonary abnormalities. However, a vascular ultrasound revealed right upper extremity brachiocephalic deep venous thrombosis (“DVT”) that was associated with catheter placement. Petitioner was given IV Heparin and admitted for further evaluation and treatment for DVT. Because she presented with chest pain, petitioner was also monitored on telemetry, despite her EKG [Electrocardiogram] results showing no ischemic changes. The admitting physician believed that her chest pain was likely related to her upper extremity DVT and to motion of her right arm. A subsequent physical exam showed right upper extremity edema and tenderness to palpation around the biceps, especially over the brachiocephalic and lateral biceps. Petitioner was discharged home on October 17, 2019, with a three-month course of anticoagulation (Xarelto) “for what appears to be a provoked DVT in the setting of catheterization of the right upper extremity after recent hospitalization.” She was directed to follow up with her primary care provider. On October 19, 2019, petitioner again presented to the emergency department at Saint Vincent Hospital, this time complaining of shortness of breath with right-sided upper chest and arm pain. She reported that she noticed right-sided pain in her anterior and lateral chest walls shortly after waking up that morning. Her pain was aching in character, aggravated by breathing, and associated with shortness of breath and lightheadedness. Petitioner’s chest x-ray appeared stables, and her EKG again showed no 6 In his analysis, Special Master Horner identifies the October 15, 2019 visit as petitioner’s “earliest treatment record” after vaccination. See Henderson v. Sec’y of Health & Hum. Servs., 2025 WL 2322052, at *10. 5 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 6 of 25 ischemic changes. She was discharged home and directed to follow up with her primary care provider and a cardiologist. However, petitioner returned to the emergency department about a month later, on December 18, 2019, with complaints of lightheadedness, nausea, blurry vision, and cough. She denied shortness of breath and chest pain, tightness, or discomfort. She was subsequently discharged home in a stable condition with no clear cause for her symptoms. There is no mention of arm pain during this encounter. On January 3, 2020, petitioner underwent a venous doppler ultrasound of the right upper extremity, which showed “[n]o evidence of any deep or superficial vein thrombosis in the right upper extremity.” On January 13, 2020, petitioner presented to nurse practitioner Christopher Cain at her primary care office. Petitioner reported intermittent pain and swelling in her right arm, and that she was still taking Xarelto. On exam, petitioner’s arm appeared normal. Petitioner’s arm remained normal in appearance on subsequent exams during follow up primary care encounters on January 29, January 31, and February 3, 2020. She was continued on Xarelto, and provided at-home exercises and stretches. Petitioner underwent a chest x-ray on February 4, 2020, which showed “[m]ild cardiomegaly similar to the prior study” and “[n]o acute pulmonary process.” She had a pacemaker implanted in February of 2020, and a subsequent chest x-ray showed no evidence of acute cardiopulmonary disease. There was no mention of arm pain during her primary care encounters on February 18 and March 3, 2020. Henderson v. Sec’y of Health & Hum. Servs., 2025 WL 2322052, at *4-6 (footnote and third, fourth, and fifth alterations added; internal references omitted). Additionally, Special Master Horner noted: On June 26, 2020, petitioner presented to nurse practitioner Cain, complaining of right arm pain. Her pain was reportedly aggravated by bending, lifting, and movement. Although she denied weakness, she described not being able to use her right arm for more than 20 minutes. Nurse practitioner Cain noted petitioner’s relevant medical history, including her right-sided DVT secondary to catheter placement in October and follow up ultrasound that was negative for DVT in January. He specifically noted, “Pain, functional difficulties since around this time.” On exam, petitioner’s right arm, wrist, and hand appeared normal. Nurse practitioner Cain assessed petitioner with chronic DVT of the brachial vein of the right upper extremity and right upper extremity tendinopathy secondary to the DVT. He specifically noted that the tendinopathy “was felt to be provoked by problem that occurred with IV access back in October 2019,” and that petitioner’s right extremity strength, range of motion, sensation, and circulation were normal on exam. Petitioner denied any numbness or tingling and was referred to a hand surgeon for further evaluation. On August 7, 2020, petitioner presented to the emergency department at Saint Vincent Hospital with complaints of right arm pain and swelling. She 6 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 7 of 25 also reported slight tingling and numbness, and she described an episode of chest pain and shortness of breath that “felt different” when compared to her typical symptoms and “was right-sided and radiate[d] down her right arm.” Petitioner stated that her symptoms began “a couple weeks ago after using hand shears cutting her bushes,” but that “today it changed and felt similar to when she had her previous DVT.” After further questions, petitioner admitted that “she was using hand shears [a] couple days ago and that her pain started the day after.” Petitioner’s physical exam, EKG, and chest x-ray was unremarkable. A vascular ultrasound showed a filling defect in the brachial vein, but no clot was visualized. It was suspected that these findings related to her prior DVT and did not evidence a new DVT. Petitioner was ultimately discharged home and advised to follow up with her primary care provider. Henderson v. Sec’y of Health & Hum. Servs., 2025 WL 2322052, at *6 (alterations in original; internal references omitted). Special Master Horner’s decision also observed petitioner had undergone primary care visits on August 13, 2020, September 14, 2020, January 27, 2021, February 19, 2021, November 21, 2021, May 2, 2022, August 15, 2022, October 5, 2022, October 13, 2022, and April 6, 2023. See id. at *6-10. Petitioner also visited an orthopedist on October 24, 2022, and a sports medicine specialist on June 6, 2023. Additionally, petitioner attended physical therapy sessions between December 2021 and July 2022. See id. at *8. Regarding the procedural history of the petitioner’s case, Special Master Horner explained: Petitioner initially filed this action pro se; however, counsel entered an appearance on petitioner’s behalf in December of 2022. Thereafter, petitioner filed medical records marked as Exhibits 1-9 between February and August of 2023. Respondent then filed his report recommending against compensation in December of 2023. Based on review of the medical records, the government contended that (1) petitioner’s condition was not limited to the shoulder in which she received her vaccination, as required by the Table criteria for SIRVA, and (2) that an IV insertion, occurring at about the same time, would alternatively explain her symptoms. Respondent further observed that the medical records contained no diagnosis of a cognizable injury and no medical opinion that would support vaccine-causation of petitioner’s symptoms. Petitioner was ordered to file an expert report supporting her claim in February of 2024. Although updated orthopedic medical records were filed, no expert medical opinion was presented. As of August 2024, petitioner’s counsel advised the court of her intention to withdraw as counsel of record. In response, a Rule 5 Order was issued, which I directed counsel to discuss with petitioner. In that order, I explained why petitioner was unlikely to prevail without presentation of an expert opinion and, further, why I felt it was unlikely petitioner would be able to secure a credible expert opinion based on the history contained in her medical records. 7 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 8 of 25 I initially permitted petitioner a 60-day continuance to locate alternative counsel, which she was apparently unable to do, but then in January of 2025, reset petitioner’s filing deadline for an expert report, giving petitioner until March 24, 2025, to file an expert report and advising that she must meet this filing deadline regardless of whether her current counsel departed the case. I advised that if no expert report were filed, then I would issue an order to show cause why this case should not be dismissed. Petitioner’s counsel confirmed petitioner was provided a copy of that order. Petitioner’s March 24, 2025 filing deadline passed without the filing of any expert report. Henderson v. Sec’y of Health & Hum. Servs., 2025 WL 2322052, at *3 (internal references omitted). Special Master Horner continued: [O]n March 25, 2025, petitioner’s former counsel moved to withdraw, and I granted that motion. Accordingly, an order to show cause was issued on April 1, 2025, giving petitioner three months, until June 30, 2025, to file an expert medical opinion as well as a brief pursuant to Vaccine Rule 8(d) explaining why petitioner believed she is entitled to compensation. Petitioner was advised that “I intend to decide this case based on the record as it then exists. If petitioner does not meaningfully develop the record of this case, my decision will result in dismissal.” In response to the order to show cause, petitioner filed 27 photographs of her medical records, with yellow highlighting of certain notations. All of the photographed records are from either October of 2019 or August of 2022 and all are records that have been previously filed. Petitioner did not file any expert medical opinion or a brief supporting her belief that she is entitled to compensation. In light of the above, I have determined that the parties have had a full and fair opportunity to present their cases and that it is appropriate to resolve entitlement on the existing record. Id. (alteration added; internal references omitted). Despite petitioner only filing documents that had already been filed and not providing an expert medical opinion or a brief supporting petitioner’s belief that she is entitled to compensation, Special Master Horner provided a detailed analysis of petitioner’s claims and her medical history. Regarding petitioner Shoulder Injury Related to Vaccine Administration claim, Special Master Horner explained: As relevant here, the Vaccine Injury Table lists Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a compensable injury if it occurs within ≤48 hours of administration of a flu vaccine.[7] [42 U.S.C.] § 300aa-14(a), 7 The Code of Federal Regulations at 42 C.F.R. § 100.3 (2025) provides the time frame “for first symptom or manifestation of onset or of significant aggravation after vaccine administration” for Shoulder Injury Related to Vaccine Administration is less than or equal to 48 hours. As explained by the Chief Special Master in an unrelated vaccine decision: 8 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 9 of 25 amended by 42 C.F.R. § 100.3. Table Injury cases are guided by “Qualifications and aids in interpretation” (“QAI”), which provide more detailed explanation of what should be considered when determining whether a petitioner has actually suffered an injury listed on the Vaccine Injury Table. [42 U.S.C.] § 300aa-14(a). To be considered a Table SIRVA petitioner must show that his/her injury fits within the following definition: SIRVA manifests as shoulder pain and limited range of motion occurring after the administration of a vaccine intended for intramuscular administration in the upper arm. These symptoms are thought to occur as a result of unintended injection of vaccine antigen or trauma from the needle into and around the underlying bursa of the shoulder resulting in an inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological injury and abnormalities on neurological examination or nerve conduction studies (NCS) and/or electromyographic (EMG) studies would not support SIRVA as a diagnosis . . . A vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests all of the following: (i) No history of pain, inflammation or dysfunction of the affected shoulder prior to intramuscular vaccine administration that would explain the alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after vaccine injection; (ii) Pain occurs within the specified time-frame; (iii) Pain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine was administered; and While more often than not Table claimants allege immediate pain, a Table SIRVA can succeed even if the pain does not manifest until up to 48 hours post-vaccination. The claim's most likely temporal “target” for occurrence has thus been widened somewhat, in fairness to possible claimants. See, e.g., National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, 80 FR 45132-01 (“[i]n order to capture the broader array of potential injuries, the Secretary proposes to add SIRVA for all tetanus toxoid-containing vaccines that are administered intramuscularly through percutaneous injection into the upper arm. The interval of onset will be less than or equal to 48 hours”). Bulman v. Sec’y of Health & Hum. Servs., No. 19-1217V, 2023 WL 5844348, at *12 (Fed. Cl. Spec. Mstr. Aug. 16, 2023) (alteration in original). 9 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 10 of 25 (iv) No other condition or abnormality is present that would explain the patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, mononeuropathies, and any other neuropathy). 42 C.F.R. § 100.3(c)(10). Henderson v. Sec’y of Health & Hum. Servs., 2025 WL 2322052, at *1-2 (omission in original; footnote and alterations added). Special Master Horner determined: In this case, after petitioner began experiencing the symptoms she attributes to SIRVA, she repeatedly discussed shooting nerve pain in her arm that she attributed to an IV placement during a recent hospitalization. Her treating physician felt she had a deep venous thrombosis (“DVT”) affecting her brachial nerve that was associated with her IV catheter placement. Even when nurse practitioner Cain later diagnosed right upper extremity tendinopathy, she still attributed it to the IV access. Beginning in 2021, petitioner did report to nurse practitioner [April] Cass and nurse practitioner [April] Sweeney that she felt her symptoms were due to her flu vaccination. However, there is no indication that either nurse practitioner agreed. Thus, the available medical opinion and available medical record evidence favors the conclusion that petitioner’s symptoms would be explained by another condition or abnormality, namely a DVT unrelated to her vaccination. To the extent petitioner herself attributed her symptoms to either nerve damage or a DVT that she nonetheless attributed to her vaccination, this is not the mechanism of injury known as SIRVA. As noted above, SIRVA is a musculoskeletal injury and not a neurologic injury. Moreover, in her earliest treatment record, petitioner specifically associated the onset of her right arm pain to her painful IV placement, which she indicated had caused “a sharp shooting pain up her arm.” Because the IV placement occurred the day before her vaccination, this necessarily places onset of her condition prior to her vaccination. Petitioner was eventually diagnosed with rotator cuff tendinitis; however, this was years removed from petitioner’s flu vaccination, petitioner did have a pre-vaccination history of right shoulder symptoms, and there is no indication her physicians felt her rotator cuff tendinitis was related to her alleged SIRVA. As respondent delineated in his Rule 4 Report, petitioner was seen for neck and right shoulder pain with tingling in her right arm just two months prior to her vaccination that was diagnosed as musculoskeletal pain. Additionally, she had a prior history of right arm tendinitis. I have considered the specific medical records that petitioner highlighted in response to my order to show cause; however, these highlighted records tend to underscore, rather than refute, this understanding of petitioner’s medical records. For example, petitioner highlighted a history of present 10 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 11 of 25 illness from her August 15, 2022 medical encounter[8]. Describing petitioner’s chief complaint of right arm pain, it explained that “[t]his occurred in the context of Started after IV insertion 10/12/19 and after flu shot was given and has been treated with Tylenol, which partially alleviates symptoms and Topical.” This history, which occurred three years after the initial injury, is ambiguous at best in implicating petitioner’s flu vaccine as a cause of her injury and is the only notation petitioner highlighted that even mentions the flu vaccine. By contrast, she highlights multiple records attributing her arm pain to a DVT she experienced after the catheter placement, including a history provided on October 16, 2019, just days after the initial onset. Henderson v. Sec’y of Health & Hum. Servs., 2025 WL 2322052, at *10-11 (internal references omitted; footnote and alterations added). After concluding petitioner did not meet her burden to prove a Table injury related to a Shoulder Injury Related to Vaccine Administration, Special Master Horner explained: Alternatively, even without meeting the specific requirements of a Table SIRVA, petitioner could still demonstrate that her injury was caused-in-fact by her vaccination, if she could demonstrate “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). However, the Vaccine Act forbids a special master from ruling in petitioner’s favor based solely on his or her assertions; rather, the petition must be supported by either medical records or by the opinion of a competent physician. [42 U.S.C.] § 300aa-13(a)(1). Here, however, none of petitioner’s treating physicians attributed her symptoms to her vaccination, whether as a musculoskeletal injury or as DVT-related nerve damage. Petitioner was provided an opportunity to present an expert medical opinion, but no such opinion was presented. Accordingly, there is no medical or expert opinion available to support causation-in-fact. Given all this, petitioner’s history is not compatible with a Table SIRVA and there is not preponderant evidence she suffered any injury caused-in-fact by her vaccination. Instead, the evidence preponderates in favor of a finding that nerve pain resulting from a DVT related to her IV placement was the more likely cause of the symptoms petitioner alleges to have been a SIRVA. And, although petitioner did eventually also carry a diagnosis of tendinitis, this condition predated her vaccination and there is no medical opinion in the 8 In the “Post-Vaccination History” portion of his decision, Special Master Horner explained: “On August 15, 2022, petitioner returned to Dr. Cermak with “a chief complaint of arm pain, involving the right anterior distal upper arm.” Henderson v. Sec'y of Health & Hum. Servs., 2025 WL 2322052, at *8. 11 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 12 of 25 record that would support that this condition was caused-in-fact by her vaccination. Henderson v. Sec’y of Health & Hum. Servs., 2025 WL 2322052, at *11 (alteration added). Therefore, Special Master Horner concluded: “Petitioner has my sympathy for the pain she has endured, and I do not doubt her sincerity in bringing this claim. However, for all the reasons discussed above, she has not met her burden of proof. Therefore, this case is dismissed.” Id. After Special Master Horner’s July 16, 2025 decision, on August 18, 2025, petitioner filed a Motion for Review in this court. Petitioner’s Motion for Review stated in full: To Whom it may concern Im[9] kindly asking for a review of my claim. Which I didn’t get included with my last deadline. Due to the help I received. Which is stated below. The exhibits are the highlighted areas. Which will show musculoskeletal issues on the 15th of October. I Ebony Henderson, feel that I should be compensated for my injury due to the vaccine I received in October 13, 2019. In my medical records will show I had limited range of motion in the 48hr period according to the vaccine table of injury. When emergy care and the fire department show up .. on the 15th of October. It’s stated that I had limited range of motion shown in exhibit (1 ). This is also stated in the emergency room records at Allegheny Health Network shown in exhibit (2). The reasons for the delay in treatment is because I was told by Dr. Shahriar Alam MD I couldn’t stay.I only stayed in the hospital for 2days shown in exhibit (3).My PCP [primary care physician] at the time didn’t want to treat me for my injuries. Only one Doctor was going to treat me was, her name is Sandra Arnold with Community Health Net. Dr. Arnold left the practice. This while I was trying to get treatment or seen for my injuries by. Then over time my entire right arm gotten worse. This can happen if left untreated. Shown in exhibit (4). According to my research. I was then by my physical therapist told I had a torn rotator cuff tear. I was also told by two orthopedic doctors shown in exhibit (5).Two months prior of injury in October. I was told that it was due to the migraine pain that caused my neck and shoulder pain. Shown in exhibit (6).but I had normal range of motion. Prior to this incident I never had any problems with the vaccine. It’s not documented no wear in my medical records. Only when I had TIA.,[ Transient Ischemic Attack10] but I had physical therapy and the problem was solved. Which is stated in my 9 Capitalization, grammar, punctuation, abbreviations, spelling, and choice of words when quoted in this Opinion are as they originally appear in petitioner’s submissions. 10 The only references to “TIA” are in Ms. Henderson’s Motion for Review and her reply brief. Petitioner has note offered further explanation in either filing. 12 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 13 of 25 medical records. I have witnesses that will state that my shoulder and arm was normal prior to this incident. Ebony Henderson (footnotes and alteration added). On September 17, 2025, defendant filed a response to the Motion for Review. Initially, defendant argues that “this Court lacks the authority to review petitioner’s untimely appeal.” Defendant contends that “the failure of petitioner to file her MFR [Motion for Review] in a timely manner constituted a waiver of the right to seek review.” (alteration added). Additionally, defendant argues on the merits of the Special Master’s decision, “petitioner has not shown that Special Master Horner’s Decision was arbitrary, capricious, or otherwise not in accordance with the law. Accordingly, the Decision should be upheld and the MFR should be dismissed.” Defendant argues that, if this court reviews the merits of Special Master Horner’s decision, “Special Master Horner correctly found that petitioner had not presented preponderant evidence that the flu vaccination she received on October 13, 2019, resulted in her alleged shoulder injury, and he properly dismissed her petition.” Petitioner’s reply to the Motion for Review was largely similar to her Motion for Review, including portions that were identical to the Motion for Review, and petitioner did not address the concerns raised in defendant’s response to the Motion for Review, including defendant’s timeliness jurisdictional arguments or defendant’s argument that petitioner did not allege that Special Master Horner had erred in his decision. Petitioner’s reply brief stated in full: To Whom it may concern This is my narrative of events. Which I didn't get included with my last deadline. Due to the help I received. Which is stated below. The exhibits are the highlighted areas. Which will show musculoskeletal issues on the 15th of October. I Ebony Henderson, feel that I should be compensated for my injury due to the vaccine I received in October 13, 2019. In my medical records will show I had limited range of motion in the 48hr period according to the vaccine table of injury. When emergy care and the fire department show up .. on the 15th of October. It's stated that I had limited range of motion shown in exhibit (1 ). This is also stated in the emergency room records at Allegheny Health Network shown in exhibit (2). The reasons for the delay in treatment is because I was told by Dr.Shahriar Alam MD I couldn't stay.I only stayed in the hospital for 2days shown in exhibit (3).My PCP at the time didn't want to treat me for my injuries. Only one Doctor was going to treat me was, her name is Sandra Arnold with Community Health Net. Dr. Arnold left the practice. This while I was trying to get treatment or seen for my injuries by. Then over time my entire right arm gotten worse. This can happen if left untreated. Shown in exhibit (4). According to my research. I was then by my physical therapist told I had a torn rotator cuff tear. I was also told by two orthopedic doctors shown in exhibit (5).Two months prior of injury in October. I was told that it was due to the migraine 13 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 14 of 25 pain that caused my neck and shoulder pain. Shown in exhibit (6).but I had normal range of motion. Prior to this incident I never had any problems with any of the vaccines my entire life. It’s not documented no where in my medical records. Only when I had TIA., but I had physical therapy and the problem was solved. Which is stated in my medical records.When I was admitted to UPMC I complained about my injury to each nurse and doctors about it. The very first day which will be October 13-15th of 2019. I was rushed out of the hospital on the day I was released from UPMC by the head nurse Jennifer. My daughter (Roxanne)was present at the time of this incident.My daughter (RaKeysha) was present when the fire department and EMS arrived at my home and and both hospitals. My daughters called the 911 cause I was in severe pain. My neighbor also saw me on the day of October 13 2019 the day I was released from UPMC. I was at her house complaining about my upper arm was hurting. My daughter Reshema was present at the time I received the vaccine. I have witnesses that will state that my shoulder and arm was normal prior to this incident. Ebony Henderson In this court, petitioner also attached a statement from her daughter RaKeysha Henderson as well as another statement from petitioner repeating the substantially similar statements as included in petitioner’s Motion for Review and her reply to the Motion for Review. D I S C U S S I O N Under the Vaccine Act, a Special Master “to whom a petition has been assigned shall issue a decision on such petition with respect to whether compensation is to be provided under the Program and the amount of such compensation.” 42 U.S.C. § 300aa- 12(d)(3)(A). Vaccine Rule 10, which is titled “Decision of the Special Master,” similarly indicates that a Special Master “will issue a decision on the petition with respect to whether an award of compensation is to be made and, if so, the amount thereof.” Vaccine Rule 10(a) (2025). The Special Master’s decision then “may be reviewed by the United States Court of Federal Claims in accordance with subsection (e).” 42 U.S.C. § 300aa-12(d)(3)(A). The statute at 42 U.S.C. § 300aa-12(e) (2024) states: (1) Upon issuance of the special master’s decision, the parties shall have 30 days to file with the clerk of the United States Court of Federal Claims a motion to have the court review the decision. If such a motion is filed, the other party shall file a response with the clerk of the United States Court of Federal Claims no later than 30 days after the filing of such motion. (2) Upon the filing of a motion under paragraph (1) with respect to a petition, the United States Court of Federal Claims shall have jurisdiction to undertake a review of the record of the proceedings and may thereafter-- 14 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 15 of 25 (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. 42 U.S.C. § 300aa-12(e)(1)-(2); see also Vaccine Rule 23(a) (2025) (“To obtain review of the special master’s decision, a party must file a motion for review with the clerk within 30 days after the date the decision is filed.”). Vaccine Rule 23(b) states that no extensions of time in which to file a motion for review may be granted, and that “the failure of a party to file a motion for review in a timely manner will constitute a waiver of the right to obtain review.” Vaccine Rule 23(b). The legislative history of the Vaccine Act states: “The conferees have provided for a limited standard for appeal from the [special] master’s decision and do not intend that this procedure be used frequently, but rather in those cases in which a truly arbitrary decision has been made.” H.R. Rep. No. 101-386, at 517 (1989) (Conf. Rep.), reprinted in 1989 U.S.C.C.A.N. 3018, 3120 (alteration added). In defendant’s response to petitioner’s Motion for Review, defendant argues that “this Court lacks the authority to review petitioner’s untimely appeal.” As described above, on July 16, 2025, Special Master Horner issued his decision dismissing Ms. Henderson’s petition and on August 18, 2025, petitioner filed her Motion for Review in the United States Court of Federal Claims. Vaccine Rule 23 requires that a party seeking review of a Special Master’s decision file a motion for review within thirty days of when the decision is filed, and states that “[n]o extensions of time will be permitted under this rule and the failure of a party to file a motion for review in a timely manner will constitute a waiver of the right to obtain review.” Vaccine Rule 23(a)-(b) (alteration added); see also Mahaffey v. Sec’y of Health & Hum. Servs., 368 F.3d 1378, 1381 (Fed. Cir. 2004) (quoting Taylor v. Sec’y of Health & Hum. Servs., 34 Fed. Cl. 137, 141 (1995)) (alteration added) (“‘Section 12(e) [42 U.S.C. § 300aa-12(e)] explicitly states that the thirty-day filing period, in which the petitioner has to file a motion for review, starts to run upon issuance of the special master's decision.’”); Williams v. Sec’y of Health & Hum. Servs., 176 Fed. Cl. 215, 216 (2025) (“Vaccine Rule 23 likewise mandates that a party must move for review of a special master’s decision within thirty days of the decision and that no extensions of time can be granted.”); Byrd v. Sec’y of Health & Hum. Servs., 175 Fed. Cl. 490, 494 (2025); Betancourt v. Sec’y of Health & Human Servs., 81 Fed. Cl. 447, 448 (2008). The Judge of the United States Court of Federal Claims in Betancourt found that a motion for review filed just one day late was untimely: Because the 30–day limitation period expired on January 9, 2008, the petition filed on January 10, 2008 was untimely. Plaintiff has not responded 15 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 16 of 25 to defendant’s motion, but given that the time period to file the motion for review is statutorily mandated, the Court would not be in a position to grant an extension or otherwise waive the time limitation, were plaintiff to request such action. See, e.g., Waller v. Secretary of Health & Human Servcs., 76 Fed. Cl. 321 (2005) (holding that the 30–day period within which to file a petition for review of a special master's decision could not be extended or waived, where the petition was filed one day late based on counsel for petitioner's erroneous belief that the time for filing a motion for review ran from the date the special master’s decision was entered on the electronic docket, rather than the date the decision was filed). Betancourt v. Sec’y of Health & Hum. Servs., 81 Fed. Cl. at 448. The docket in the above-captioned case indicates that after Special Master Horner issued his July 16, 2025 decision dismissing Ms. Henderson’s petition, Ms. Henderson did not file any documents during the statutory thirty-day time period with the United States Court of Federal Claims. The first filing in the case after Special Master Horner’s July 16, 2025 decision was petitioner’s August 18, 2025 Motion for Review. Therefore, there is nothing on the docket in this case in the thirty days following the Special Master’s July 16, 2025 decision that could be used to satisfy the requirement of filing a motion for review under Vaccine Rule 23. Defendant raised the issue of the failure to timely file the Motion for Review in defendant’s September 17, 2025 response to the Motion for Review, arguing that, “petitioner did not file her MFR until August 18, 2025, beyond the prescribed period. Pursuant to Vaccine Rule 23(b), no extensions of time are permitted, and the failure of petitioner to file her MFR in a timely manner constituted a waiver of the right to seek review.” Defendant continues: “On that basis alone, the special master’s Decision should be upheld, and the MFR should be dismissed.” Plaintiff, however, did not respond or address defendant’s waiver argument in her reply brief. Notably, “‘[a] party’s failure to raise an argument in an opening or responsive brief constitutes waiver.” Superior Waste Mgmt. LLC v. United States, 169 Fed. Cl. 239, 297 (2024) (quoting Sarro & Assocs., Inc. v. United States, 152 Fed. Cl. 44, 58–59 (2021)) (alteration added); see also Big Will Trucking, LLC v. United States, 179 Fed. Cl. 54-55 (2025); McCarthy v. United States, 171 Fed. Cl. 469, 481 (2024). Although a pro se petitioner, such as Ms. Henderson, can be entitled to certain leniencies, the petitioner’s pro se status “cannot be construed as allowing the court to cast aside jurisdictional prerequisites.” See Baker ex rel. Baker v. Sec’y of Health & Human Servs., 61 Fed. Cl. 669, 671 (citations omitted), appeal dismissed, 112 F. App’x 35 (Fed. Cir. 2004). Such a limitation is consistent with the “age- old rule that a court may not in any case, even in the interest of justice, extend its jurisdiction where none exists.” See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988); see also Johns-Manville Corp. v. United States, 855 F.2d 1556, 1565 (Fed. Cir. 1988) (“Principles of equity do not support finding jurisdiction exists. A court may not in any case, even in the interest of justice, extend its jurisdiction where none exists.” (citation omitted)), cert. denied, 489 U.S. 1086 (1989). Ms. Henderson did not 16 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 17 of 25 comply with the requirement to timely file her Motion for Review, and that failure constituted a waiver of her right to obtain review in this court. Although the court has concluded above that this court lacks jurisdiction to consider petitioner’s untimely Motion for Review, for the pro se petitioner’s benefit, the court includes an examination of why the Special Master’s decision also should not be reversed. Regarding the standard of review of a Special Master’s decision, the United States Court of Appeals for the Federal Circuit in Markovich v. Secretary of Health & Human Services wrote, “[u]nder the Vaccine Act, the Court of Federal Claims reviews the Special Master’s decision to determine if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’ 42 U.S.C. § 300aa-12(e)(2)(B).” Markovich v. Sec’y of Health & Hum. Servs., 477 F.3d 1353, 1355–56 (Fed. Cir.), cert. denied, 552 U.S. 816 (2007) (alteration added); see also Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1381 (Fed. Cir. 2021); Sharpe v. Sec’y of Health & Hum. Servs., 964 F.3d 1072, 1077 (Fed. Cir. 2020). As explained by the Federal Circuit: With regard to both fact-findings and fact-based conclusions, the key decision maker in the first instance is the special master. The Claims Court owes these findings and conclusions by the special master great deference—no change may be made absent first a determination that the special master was “arbitrary and capricious.” Munn v. Sec’y of Health & Hum. Servs., 970 F.2d 863, 870 (Fed. Cir. 1992); see also 42 U.S.C. § 300aa-12(e)(2)(B). “‘[R]eversible error is extremely difficult to demonstrate if the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision.’” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d at 1381 (quoting Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000)) (alteration added). The Federal Circuit also has explained: “With respect to factual findings, however, we will uphold the special master’s findings of fact unless they are clearly erroneous.” K.G. v. Sec’y of Health & Hum. Servs., 951 F.3d 1374, 1379 (Fed. Cir. 2020); (citing Althen v. Sec’y of Health & Hum. Servs., 418 F.3d at 1278)); Hibbard v. Sec’y of Health & Hum. Servs., 698 F.3d 1355, 1363 (Fed. Cir. 2012) (citing Cedillo v. Sec’y of Health & Hum. Servs., 617 F.3d 1328, 1338 (Fed. Cir. 2010)). When proving eligibility for compensation for a petition under the Vaccine Act, a petitioner must establish by a preponderance of the evidence that he received a vaccine set forth in the Vaccine Injury Table and that injury caused by the vaccination occurred within the required amount of time. See Althen v. Sec’y of Health & Hum. Servs., 418 F.3d at 1278; see also 42 U.S.C. § 300aa-11(c)(1)(A). Regarding the preponderance of the evidence standard, the Vaccine Act requires “‘the trier of fact to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact's existence.’” Moberly ex rel. Moberly v. Sec’y of Health and Hum. Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (alterations in original) (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602 (1993)). In demonstrating this preponderance of 17 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 18 of 25 evidence, petitioner may not rely on his or her testimony alone to establish preponderant evidence of vaccine administration. According to the Vaccine Act, “[t]he special master or court may not make such a finding based on the claims of a petitioner alone, unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-13(a)(1). In weighing the evidence, the Special Master has discretion to determine the relative weight of the evidence presented, including contemporaneous medical records and oral testimony. See Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (finding that the Special Master had thoroughly considered evidence in record, had discretion not to hold an additional evidentiary hearing); see also Hibbard v. Sec’y of Health & Hum. Servs., 698 F.3d at 1368 (finding it was not arbitrary or capricious for the Special Master to weigh diagnoses of different treating physicians against one another, including when their opinions conflict). A Special Master is “not required to discuss every piece of evidence or testimony in [his or] her decision.” Snyder ex rel. Snyder v. Sec’y of Health & Hum. Servs., 88 Fed. Cl. 706, 728 (2009) (alteration added); see also Mosley v. Sec’y of Health & Hum. Servs., 119 Fed. Cl. 734, 743 (2015). Initially, defendant argues that in petitioner’s Motion for Review, “petitioner has made no showing that the special master erred – she does not allege that the special master’s Decision was arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law.” It is not clear from petitioner’s Motion for Review, or her reply brief, what errors she believes were present in Special Master Horner’s decision, and if those errors were errors in factual findings or errors in the application of law to petitioner’s case. In her Motion for Review petitioner claims: “I Ebony Henderson, feel that I should be compensated for my injury due to the vaccine I received in October 13, 2019. In my medical records will show I had limited range of motion in the 48hr period according to the vaccine table of injury.” The reply brief to the Motion for Review repeats: “I Ebony Henderson, feel that I should be compensated for my injury due to the vaccine I received in October 13, 2019. In my medical records will show I had limited range of motion in the 48hr period according to the vaccine table of injury.” Petitioner’s reply brief continues: I was then by my physical therapist told I had a torn rotator cuff tear. I was also told by two orthopedic doctors shown in exhibit (5).Two months prior of injury in October. I was told that it was due to the migraine pain that caused my neck and shoulder pain. Shown in exhibit (6).but I had normal range of motion. Prior to this incident I never had any problems with any of the vaccines my entire life. It’s not documented no where in my medical records. Only when I had TIA., but I had physical therapy and the problem was solved. Which is stated in my medical records. Defendant argues that petitioner’s Motion for Review “is simply a request that this Court reweigh the evidence and substitute its own judgment to reach a different conclusion.” Although petitioner has not identified or alleged any specific error by Special Master Horner, just that petitioner believes she is entitled to compensation, as indicated above, for the pro se petitioner’s benefit to understand the court’s decision, the court considers the merits of Special Master Horner’s decision. As explained above, “[u]nder the Vaccine 18 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 19 of 25 Act, the Court of Federal Claims reviews the Special Master’s decision to determine if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’” Markovich v. Sec’y of Health & Hum. Servs., 477 F.3d at 1355–56 (quoting 42 U.S.C. § 300aa-12(e)(2)(B)) (alteration added). As quoted above, “‘reversible error is extremely difficult to demonstrate if the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision.’” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d at 1381 (quoting Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d at 1360); see also Winkler v. Sec’y of Health & Hum. Servs., 88 F.4th 958, 963 (Fed. Cir. 2023) (“That makes reversible error and abuses of discretion ‘extremely difficult to demonstrate’ when, as is the case here, the Special Master ‘considered the relevant evidence of record, dr[ew] plausible inferences and articulated a rational basis for the decision.’” (Hines v. Sec’y of Health & Hum. Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991) (alteration in original). Addressing petitioner’s claim “that she sustained a Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of her receipt of the Influenza vaccination,” Special Master Horner, quoting 42 C.F.R. § 100.3(c)(10), explained: To be considered a Table SIRVA petitioner must show that his/her injury fits within the following definition: SIRVA manifests as shoulder pain and limited range of motion occurring after the administration of a vaccine intended for intramuscular administration in the upper arm. These symptoms are thought to occur as a result of unintended injection of vaccine antigen or trauma from the needle into and around the underlying bursa of the shoulder resulting in an inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological injury and abnormalities on neurological examination or nerve conduction studies (NCS) and/or electromyographic (EMG) studies would not support SIRVA as a diagnosis . . . A vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests all of the following: (i) No history of pain, inflammation or dysfunction of the affected shoulder prior to intramuscular vaccine administration that would explain the alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after vaccine injection; (ii) Pain occurs within the specified time-frame; (iii) Pain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine was administered; and 19 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 20 of 25 (iv) No other condition or abnormality is present that would explain the patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, mononeuropathies, and any other neuropathy). Henderson v. Sec’y of Health & Hum. Servs., 2025 WL 2322052, at *1-2 (omission in original). When considering whether petitioner met the criteria for a Shoulder Injury Related to Vaccine Administration, Special Master Horner stated that “SIRVA is by definition a musculoskeletal injury and not a neurologic injury.” Id. at *10. Special Master Horner then determined: In this case, after petitioner began experiencing the symptoms she attributes to SIRVA, she repeatedly discussed shooting nerve pain in her arm that she attributed to an IV placement during a recent hospitalization. Her treating physician felt she had a deep venous thrombosis (“DVT”) affecting her brachial nerve that was associated with her IV catheter placement. Even when nurse practitioner Cain later diagnosed right upper extremity tendinopathy, she still attributed it to the IV access. Beginning in 2021, petitioner did report to nurse practitioner Cass and nurse practitioner Sweeney that she felt her symptoms were due to her flu vaccination. However, there is no indication that either nurse practitioner agreed. Thus, the available medical opinion and available medical record evidence favors the conclusion that petitioner’s symptoms would be explained by another condition or abnormality, namely a DVT unrelated to her vaccination. To the extent petitioner herself attributed her symptoms to either nerve damage or a DVT that she nonetheless attributed to her vaccination, this is not the mechanism of injury known as SIRVA. As noted above, SIRVA is a musculoskeletal injury and not a neurologic injury. Moreover, in her earliest treatment record, petitioner specifically associated the onset of her right arm pain to her painful IV placement, which she indicated had caused “a sharp shooting pain up her arm.” Because the IV placement occurred the day before her vaccination, this necessarily places onset of her condition prior to her vaccination. Petitioner was eventually diagnosed with rotator cuff tendinitis; however, this was years removed from petitioner’s flu vaccination, petitioner did have a pre-vaccination history of right shoulder symptoms, and there is no indication her physicians felt her rotator cuff tendinitis was related to her alleged SIRVA. As respondent delineated in his Rule 4 Report, petitioner was seen for neck and right shoulder pain with tingling in her right arm just two months prior to her vaccination that was diagnosed as musculoskeletal pain. Additionally, she had a prior history of right arm tendinitis. Id. (internal references omitted). Special Master Horner continued: I have considered the specific medical records that petitioner highlighted in response to my order to show cause; however, these highlighted records 20 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 21 of 25 tend to underscore, rather than refute, this understanding of petitioner’s medical records. For example, petitioner highlighted a history of present illness from her August 15, 2022 medical encounter. Describing petitioner’s chief complaint of right arm pain, it explained that “[t]his occurred in the context of Started after IV insertion 10/12/19 and after flu shot was given and has been treated with Tylenol, which partially alleviates symptoms and Topical.” This history, which occurred three years after the initial injury, is ambiguous at best in implicating petitioner’s flu vaccine as a cause of her injury and is the only notation petitioner highlighted that even mentions the flu vaccine. By contrast, she highlights multiple records attributing her arm pain to a DVT she experienced after the catheter placement, including a history provided on October 16, 2019, just days after the initial onset. Id. at *11 (internal references omitted). Defendant notes “[w]hile petitioner eventually reported her belief that her symptoms were due to her flu vaccination,[11] she did not make this association until sixteen months after vaccination, and Special Master Horner noted that there is no indication that petitioner’s medical providers agreed with this association.” (footnote and alteration added). Therefore, defendant argues “the special master correctly held that the available medical record evidence favored the conclusion that petitioner’s symptoms were more appropriately explained by a DVT unrelated to vaccination.” The record before the Special Master and this court supports Special Master Horner’s conclusions. Special Master Horner, when considering petitioner’s claims, “considered the relevant evidence of record,” with specific citations to petitioner’s medical records, drew “plausible inferences,” and “articulated a rational basis for the decision.’” See Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d at 1381. Special Master Horner’s written decision demonstrated that the Special Master’s careful examination of petitioner’s medical records and the Special Master’s determination that petitioner’s records did not support her claims for a Table injury of a Shoulder Injury Related to Vaccine Administration was correct. 11 In the “Post-Vaccination History” portion of Special Master Horner’s decision, Special Master Horner explained: On February 19, 2021, petitioner presented to certified registered nurse practitioner April Sweeney to establish new care. In pertinent part, petitioner reported that “she began to experience nerve damage to her Right upper extremity and she feels it is from either a previous influenza injection she had [been] given in [her] deltoid or possibly an IV that she had in her right arm.” This is the first time that petitioner implicated her flu vaccination as a potential cause of her right arm symptoms. Petitioner had a normal range of motion on physical exam, but she refused a further flu vaccination. Henderson v. Sec’y of Health & Hum. Servs., 2025 WL 2322052, at *7 (alterations in original; internal references omitted). 21 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 22 of 25 Despite petitioner’s broad claim in her filings “that she sustained a Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of her receipt of the Influenza vaccination,” Special Master Horner, explained in his decision: Alternatively, even without meeting the specific requirements of a Table SIRVA, petitioner could still demonstrate that her injury was caused-in-fact by her vaccination, if she could demonstrate “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.” Henderson v. Sec’y of Health & Hum. Servs., 2025 WL 2322052, at *10 (quoting Althen v. Sec’y of Health & Hum. Servs., 418 F.3d at 1278). Under the off-Table theory of recovery, a petitioner can be entitled to compensation if he or she can demonstrate, by a preponderance of the evidence, that the recipient of the vaccine sustained, or had significantly aggravated, an illness, disability, injury, or condition not set forth in the Vaccine Injury Table, but which was caused by a vaccine that is listed on the Vaccine Injury Table. See 42 U.S.C. §§ 300aa-11(c)(1)(C)(ii)(I), 300aa-13(a)(1)(A); see also LaLonde v. Sec’y of Health & Hum. Servs., 746 F.3d 1334, 1339 (Fed. Cir. 2014); W.C. v. Sec’y of Health & Hum. Servs., 704 F.3d 1352, 1356 (Fed. Cir. 2013) (“Nonetheless, the petitioner must do more than demonstrate a ‘plausible’ or ‘possible’ causal link between the vaccination and the injury; he must prove his case by a preponderance of the evidence.” (quoting Moberly ex rel. Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d at 1322)); Hines v. Sec’y of Health & Hum. Servs., 940 F.2d at 1525; A.Y. by J.Y. v. Sec’y of Health & Hum. Servs., 152 Fed. Cl. 588, 595 (2021). While scientific certainty is not required, the Special Master “is entitled to require some indicia of reliability to support the assertion of the expert witness.” Moberly ex rel. Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d at 1324; see also Hazlehurst v. Sec’y of Health & Hum. Servs., 88 Fed. Cl. 473, 479 (2009), aff’d, 604 F.3d 1343 (Fed. Cir. 2010) (quoting Andreu ex rel. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d at 1379). As correctly articulated by Special Master Horner in his July 16, 2025 decision, the United States Court of Appeals for the Federal Circuit in Althen v. Secretary of Health and Human Services specified a three-prong test which a petitioner must meet in order to establish causation in an off-Table injury case: Concisely stated, Althen’s burden is to show by preponderant evidence that the vaccination brought about her injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury. Althen v. Sec’y of Health & Hum. Servs., 418 F.3d at 1278 (first alteration added). To establish causation in fact for a Non-Table claim, a petitioner must satisfy all three of the 22 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 23 of 25 elements established by the United States Court of Appeals for the Federal Circuit in Althen v. Secretary of Health & Human Services, 418 F.3d 1274. See Winkler v. Sec’y of Health & Hum. Servs., 88 F.4th at 961-62. In his analysis, Special Master Horner correctly explained that “the Vaccine Act forbids a special master from ruling in petitioner’s favor based solely on his or her assertions; rather, the petition must be supported by either medical records or by the opinion of a competent physician.” Henderson v. Sec’y of Health & Hum. Servs., 2025 WL 2322052, at *11. The Vaccine Act at 42 U.S.C. § 300aa-13 (2024) provides: “The special master or court may not make such a finding based on the claims of a petitioner alone, unsubstantiated by medical records or by medical opinion.” Id.; see also J.S. v. Sec’y of Health & Hum. Servs., 164 Fed. Cl. 314, 340 (2023), aff’d, 2024 WL 4051281 (Fed. Cir. Sept. 5, 2024); Tenneson v. Sec’y of Health & Hum. Servs., 142 Fed. Cl. 329, 338 (2019). In his decision, Special Master Horner also explained: Here, however, none of petitioner’s treating physicians attributed her symptoms to her vaccination, whether as a musculoskeletal injury or as DVT-related nerve damage. Petitioner was provided an opportunity to present an expert medical opinion, but no such opinion was presented. Accordingly, there is no medical or expert opinion available to support causation-in-fact. Given all this, petitioner’s history is not compatible with a Table SIRVA and there is not preponderant evidence she suffered any injury caused-in-fact by her vaccination. Instead, the evidence preponderates in favor of a finding that nerve pain resulting from a DVT related to her IV placement was the more likely cause of the symptoms petitioner alleges to have been a SIRVA. And, although petitioner did eventually also carry a diagnosis of tendinitis, this condition predated her vaccination and there is no medical opinion in the record that would support that this condition was caused-in-fact by her vaccination. Henderson v. Sec’y of Health & Hum. Servs., 2025 WL 2322052, at *11. As described above, in the “Procedural History” portion of Special Master Horner’s decision, Special Master Horner explained: In response to the order to show cause, petitioner filed 27 photographs of her medical records, with yellow highlighting of certain notations. All of the photographed records are from either October of 2019 or August of 2022 and all are records that have been previously filed. Petitioner did not file any expert medical opinion or a brief supporting her belief that she is entitled to compensation. Id. at *3 (internal references omitted). Special Master Horner, when examining the medical records, in the absence of an expert report or brief from petitioner, explained that petitioner 23 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 24 of 25 repeatedly discussed shooting nerve pain in her arm that she attributed to an IV placement during a recent hospitalization. Her treating physician felt she had a deep venous thrombosis (“DVT”) affecting her brachial nerve that was associated with her IV catheter placement. Even when nurse practitioner Cain later diagnosed right upper extremity tendinopathy, she still attributed it to the IV access. Beginning in 2021, petitioner did report to nurse practitioner Cass and nurse practitioner Sweeney that she felt her symptoms were due to her flu vaccination. However, there is no indication that either nurse practitioner agreed. Thus, the available medical opinion and available medical record evidence favors the conclusion that petitioner’s symptoms would be explained by another condition or abnormality, namely a DVT unrelated to her vaccination. Id. at *10 (internal references omitted). Special Master Horner also explained that “in her earliest treatment record [identified as October 15, 2019], petitioner specifically associated the onset of her right arm pain to her painful IV placement, which she indicated had caused ‘a sharp shooting pain up her arm.’ Because the IV placement occurred the day before her vaccination, this necessarily places onset of her condition prior to her vaccination.” Id. (internal reference omitted; alteration added). Regarding petitioner’s diagnosis of rotator cuff tendinitis, Special Master Horner specifically pointed out that the diagnosis was “years removed from petitioner’s flu vaccination, petitioner did have a pre- vaccination history of right shoulder symptoms.” Id. Additionally, Special Master Horner noted that “petitioner was seen for neck and right shoulder pain with tingling in her right arm just two months prior to her vaccination that was diagnosed as musculoskeletal pain. Additionally, she had a prior history of right arm tendinitis.” Id. Defendant argues that the special master correctly observed that none of petitioner’s treating physicians attributed her symptoms to her vaccination, whether as a musculoskeletal injury or as DVT-related nerve damage. Thus, the records themselves do not support petitioner’s allegations. And although petitioner was provided with an opportunity to present an expert medical opinion, no such opinion was presented. Accordingly, the special master appropriately found that petitioner had not established that her shoulder injury was caused-in-fact by her flu vaccination. (internal reference omitted). The court agrees that Special Master Horner rationally determined that petitioner had not demonstrated, by a preponderance of the evidence, that her injury was caused by her vaccination. See Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006); see also Cozart v. Sec’y of Health & Hum. Servs., 126 Fed. Cl. 488, 498 (2016). 24 Case 1:22-vv-01528-MBH Document 76 Filed 02/28/26 Page 25 of 25 CONCLUSION For the reasons stated above, the court finds petitioner’s August 18, 2025 Motion for Review of Special Master Horner’s July 16, 2025 decision was untimely and must be dismissed. Regardless, Ms. Henderson would not be entitled to compensation because the Special Master’s decision was neither arbitrary nor capricious and was in accordance with the law. Petitioner’s Motion for Review is DENIED. The Clerk of the Court shall enter JUDGMENT consistent with this Opinion dismissing petitioner’s case. IT IS SO ORDERED. s/Marian Blank Horn MARIAN BLANK HORN Judge 25