ALTO v. SECRETARY OF HEALTH AND HUMAN SERVICES

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-2116V
UNPUBLISHED
RUSTY ROSS ALTO,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Chief Special Master Corcoran
Filed: December 2, 2025
Jennifer Leigh Allen, Allen Law LLC, Ellicott City, MD, for Petitioner.
Margaret Armstrong, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND ORDER TO SHOW CAUSE1
On November 1, 2021, Rusty Alto filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine 	Act”). 	Petitioner 	alleges 	that 	he 	suffered 	anaphylaxis 	or 	“some 	form 	of
respiratory and cardiac injury” after receiving an influenza (“flu”) vaccine on October 31,
2018. Petition (“Pet.”) at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
For the reasons set forth below, I find Petitioner has not met the requirements of a
Table Claim. Petitioner has also failed to establish that he likely suffered the residual
effects of his injury for more than six months. Unless Petitioner can show cause why this
claim is tenable, it may face dismissal.
1 In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or
other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon
review, I agree that the identified material fits within this definition, I will redact such material from public
access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
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I. 	Procedural History
Petitioner alleges that he received a flu vaccine on October 31, 2018, and that he
suffered the Table Injury of anaphylaxis or, in the alternative, “some form of respiratory
and cardiac injury” that was “caused in fact” by the vaccination. Pet. at 1-2. He asserts
that he suffered an allergic reaction to the vaccine that resulted in a sudden decrease in
blood oxygen levels and a spike in blood pressure resulting in vitreous hemorrhaging. Id.
at 2, 7.
After the claim’s initiation, Petitioner sought numerous extensions, and ultimately
filed six exhibits and a statement of completion on January 22, 2024. ECF Nos. 11, 12,
13. Petitioner was informed that his filing was “not substantially complete” on February 5,
2024. ECF No. 14. Following an initial status conference, Petitioner sought an extension
for filing an amended petition and outstanding records, but did not later do so. ECF No.
17.
Respondent filed a motion to dismiss on August 6, 2024. Respondent’s Motion to
Dismiss (“Mot.”) (ECF No. 19). Respondent argues that Petitioner has not established he
received a flu vaccine on October 31, 2018, has not established that he suffered
anaphylaxis or a Table injury, and that his injury is due to a preexisting condition. Id. at 9-
12.
Petitioner 	filed 	his 	response 	and 	additional 	evidence 	on 	August 	20, 	2024.
Response to Motion to Dismiss (“Pet. Res.”), ECF No. 20. Petitioner argues that he has
established a prima facie case for causation. Id. at 22-31. Respondent filed a response
on August 26, 2024. Respondent’s Reply to Petitioner’s Response to Motion to Dismiss
(“Reply”), ECF No. 21.
II. 	Fact History
Petitioner’s medical history includes uncontrolled type 2 diabetes, hypertension,
hyperglycemia, congestive heart failure, and deep venous thrombosis. Ex. 6 at 1. There
are also records of high blood pressure, including in 2017. Ex. 6 at 4. Petitioner was taking
blood pressure medication prior to his vaccination, and was diagnosed with hypertensive
urgency. Id.
Petitioner allegedly received a flu vaccine on October 31, 2018, although there is
no vaccination record. Ex. 1 at 4. Petitioner had an appointment with his primary care
provider, Dr. Ashley Bryson, at 10:10 AM on October 31, 2018. Id. at 1. He reported that
he did not take his medicine that morning, was initially asymptomatic, however “5 minutes
later developed a HA [headache] which he says has been off and on, and no reporting
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blurred vision…is dizzy.” Id. He was sent to the emergency department, possibly due to
chest pain and elevated blood pressure. Id. at 3.
At the emergency department, Petitioner reported that he had gone to the
Cascades East clinic for a flu vaccine, “and then his blood pressure got higher and he
started having substernal chest pain.” Ex. 1 at 4. He also reported an ongoing upper
respitory infection for the past two weeks, that he has not seen a cardiologist for his
congestive heart failure, and that he has had ongoing problems from Rocky Mountain
spotted fever. Id. Petitioner was also taking medications for his upper respiratory infection
that “[h]e realizes … may raise his blood pressure….” Id. Petitioner denied shortness of
breath, vision complaints, coughing, difficulty swallowing, or rashes. Id. at 7. He was
diagnosed with chest pain and hypertension, and discharged later that day. Id. at 9.
On December 7, 2018, Petitioner sought care for left vison problems “so bad that
all he could see [was] shadows and blurry figures.” Ex. 3 at 1. He stated that the
symptoms, including elevated blood pressure and dizziness, began three weeks prior,
after he received a flu vaccine. Id.
Petitioner saw ophthalmologist Dr. Jonathan Fay on December 8, 2018, with
complaints of diabetes and “vision loss; OS [(left side)]; Not Improving; 10 day (s); No
Pain.” Ex. 4 at 1. Dr. Fay’s assessment was diabetes “with proliferative diabetic
retinopathy without macular edema, bilateral” and vitreous hemorrhage in left eye. Id. at
4.
On December 10, 2018, Petitioner had a follow-up appointment with Dr. Bryson
for hypertension, uncontrolled diabetes, blurry vision, and loss of vision in his left eye. Ex.
2 at 4. Petitioner attributed his blurred vison to “coughing and having high BP [blood
pressure]” at his last appointment. Id. However, the record states “Dr. Fay said probably
from diabetes and HTN [hypertension].” Id. at 4. Insulin was recommended but declined.
Id. at 4-5.
Following a car accident on December 24, 2018, Petitioner suffered a headache,
neck pain, and back pain. Ex. 2 at 8. He was diagnosed with acute neck strain, lumbar
pain, and a concussion. Id. at 9-10.
Petitioner returned to Dr. Bryson on February 1, 2019, for a follow-up regarding his
diabetes, blood pressure, and eye complaints. Ex. 2 at 11. Petitioner reported he was not
taking all his prescribed diabetes medications; however his blood pressure was improved.
Id. Petitioner also stated he was receiving injections in his eyes to help blood vessels
grow back stronger. Id. at 11, 14. Additionally, he “reported to the MA that his vision loss
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is due to his flu shot because that is what made his blood pressure go so high.” Id. Dr.
Bryson noted “that is not a likely reaction to the influenza vaccine” and even removed
influenza from Petitioner’s allergies. Id. at 11. Further, “[i]f one were to review his chart,
they will note that his blood pressure has been markedly high on multiple occasions aside
from surrounding the time of his influenza vaccine.” Id.
Petitioner’s BP remained elevated throughout 2019 and 2020. Ex. 4 at 38 (178/110
on February 22, 2019); id. at 45 (176/108 on March 22, 2019); Ex. 5 at 1 (179/103 on
April 26, 2019); id. at 6 (188/117 on May 24, 2019); id. at 13 (196/131 on May 31, 2019);
id. at 20 (165/90 on June 24, 2019); id. at 27 (181/115 on July 1, 2019); id. at 58 (173/106
on February 24, 2020).
Petitioner continued to follow up with Dr. Fay through February 2020. He received
Avastin and Eyela injections in both eyes. Ex. 5 at 57. Petitioner’s “problem summary”
included 	diagnoses 	of 	diabetes, 	hypertension, 	congestive 	heart 	failure, 	and
preproliferative diabetic retinopathy. Id.
III. 	Analysis
A. Petitioner Likely Received a Flu Vaccine on October 31, 2018
Respondent argues that Petitioner has not provided proof of vaccination, and
“[g]iven how much time [P]etitoiner was given to file a vaccine record, the fact that one
has not been filed suggests that one does not exist.” Mot. at 9.
Under the Vaccine Act, establishing proof of vaccination is a threshold matter in
order to prevail under either a “Table” injury (in which causation is presumed) or an “off-
Table” injury, in which petitioner identifies a causal link between the vaccine and the
alleged 	injury. 	§ 	300aa–11(c)(1)(A) 	and 	(B). 	A 	claimant 	must 	first 	prove 	by 	a
preponderance of the evidence that he “received a vaccine set forth in the Vaccine Injury
Table.” § 300aa-11(c)(1)(A). A special master shall assess “the record as a whole” and
may not “find that a petitioner received a vaccine ‘based on the claims of a petitioner
alone, unsubstantiated by medical records or by medical opinion.’” Rich v. Sec'y of Health
& Human Servs., No. 12–742V, 2013 WL 4476751 (Fed. Cl. Spec. Mstr. July 26, 2013)
(§ 300aa–13(a)(1)).
Although contemporaneous documentation of vaccination from a healthcare
provider is the best evidence to prove administration of a vaccine, it is not absolutely
required in all cases. Centmehaiey v. Sec'y of Health & Human Servs., 32 Fed. Cl. 612,
621 (1995) (“[t]he lack of contemporaneous documentary proof of a vaccination ... does
not necessarily bar recovery”). The existing case law supports that corroborative, though
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backward-looking, medical notations have been found to tip the evidentiary scale in favor
of vaccine receipt. Lamberti v. Sec'y of Health & Hum. Servs., No. 99–507V, 2007 WL
1772058, at *7 (Fed. Cl. Spec. Mstr. May 31, 2007). Further, a single notation of a
statement made in the process of seeking medical care can satisfy the proof of
vaccination requirement. Groht v. Sec'y of Health & Hum. Servs., No. 00–287V, 2006 WL
3342222, at *2.
Special masters have thus found that vaccine administration occurred even in the
absence of direct documentation. In such cases, preponderant evidence was provided in
the form of other medical records and/or witness testimony. For example, corroborative,
though backward-looking, medical notations have been found to tip the evidentiary scale
in favor of vaccine receipt. Lamberti., No. 99–507V, 2007 WL 1772058 at *7 (finding
multiple medical record references to vaccine receipt constituted adequate evidence of
administration); Groht, 	No. 00–287V, 2006 WL 3342222 at *2 	(finding a treating
physician's note—“4/30/97—Hep B. inj. # 1 (not given here) (pt. wanted this to be
charted)”—to be sufficient proof of vaccination); Figueroa v. Sec'y of Health & Hum.
Servs., No. 10-705V, 2014 WL 6819494, at *4 (Fed. Cl. Spec. Mstr. Nov. 7, 2014) (finding
sufficient proof of vaccination where subsequent medical records documented that
petitioner consistently reported receiving the subject flu vaccination); Beckner v. Sec'y of
Health & Hum. Servs., No. 11-668V, 2013 WL 3353993, at *8 (Fed. Cl. Spec. Mstr. Apr.
25, 2013) (finding sufficient proof of vaccination where a medical record created
approximately 	a 	month 	after 	petitioner's 	alleged 	receipt 	of 	the 	subject 	vaccine
documented petitioner's report of his vaccination and the statement was made “for the
purpose of facilitating diagnosis and treatment of his condition...[and] the vaccination was
received in such close temporal proximity to petitioner's admission that misremembering
is unlikely”).
Upon 	review 	of 	the record 	as 	it 	stands, I 	find 	that 	Petitioner 	has 	offered
preponderant evidence that he likely received a flu vaccine on October 31, 2018. When
Petitioner was seen at the emergency department on October 31, 2018 (the same day of
his alleged vaccination), the record states he came from a clinic and that he “went there
and got an influenza vaccine….” Ex 1 at 4. And he subsequently reported to other treaters
vaccination around this time.
B. Petitioner Does Not Meet the Requirements for a Table Anaphylaxis
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). In addition to requirements concerning the vaccination received, the
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duration and severity of petitioner’s injury, and the lack of other award or settlement,3 a
petitioner must establish that she suffered an injury meeting the Table criteria, in which
case causation is presumed, or an injury shown to be caused-in-fact by the vaccination
she received. Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, anaphylaxis following a flu vaccine is compensable
if it manifests within four or less hours of vaccination. 	hours of the administration of an
influenza 	vaccine. 	42 	C.F.R. 	§ 	100.3(a)(XVI)(A). 	The 	Qualifications 	and 	Aids 	to
Interpretation (“QAI”) also specify that:
Anaphylaxis is an acute, severe, and potentially lethal systemic reaction that
occurs as a single discrete event with simultaneous involvement of two or
more organ systems. Most cases resolve without sequela. Signs and
symptoms begin minutes to a few hours after exposure. Death, if it occurs,
usually results from airway obstruction caused by laryngeal edema or
bronchospasm and may be associated with cardiovascular collapse. Other
significant clinical signs and symptoms may include the following: Cyanosis,
hypotension, bradycardia, tachycardia, arrhythmia, edema of the pharynx
and/or trachea and/or larynx with stridor and dyspnea. There are no specific
pathological findings to confirm a diagnosis of anaphylaxis.
42 C.F.R. § 100.3(c)(1).
A special master must consider, but is not bound by, any diagnosis, conclusion,
judgment, 	test 	result, 	report, 	or 	summary 	concerning 	the 	nature, 	causation, 	and
aggravation of petitioner’s injury or illness that is contained in a medical record. Section
13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence.
The records contain information supplied to or by health professionals to facilitate
diagnosis and treatment of medical conditions. With proper treatment hanging in the
balance, 	accuracy 	has 	an 	extra 	premium. 	These 	records 	are 	also 	generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
3 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
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Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.
Medical records may be outweighed by testimony that is given later in time that is
“consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42
Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the
individual offering such testimony must also be determined. Andreu v. Sec’y of Health &
Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum.
Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
Petitioner alleges that he developed a headache, blurred vision, dizziness, fatigue,
shortness of breath, and a spike in blood pressure following his vaccination. Pet. at 2.
However, these symptoms are either not corroborated in the medical records or do not
qualify as anaphylaxis. Shortly after vaccination, he was transported to an emergency
department with complaints of high blood pressure and chest pain (symptoms not
commonly 	associated with anaphylaxis), but denied shortness of breath, difficulty
swallowing or speaking, or rashes. Ex. 1 at 4. He also did not receive any common
treatment for anaphylaxis such as epinephrine or antihistamines. Additionally, his treating
physicians did not include anaphylaxis as a potential ailment. Further, months after his
vaccination, influenza was removed from a list of Petitioner’s allergies because, according
to Dr. Bryson, his complaints were “not a likely reaction to the influenza vaccine. Ex. 2 at
11.
In summation, there is insufficient evidence that Petitioner suffered the kinds of
anaphylaxis symptoms described in the QAI, no records show that Petitioner was treated
for anaphylaxis, and no reference in his medical records that he suffered anaphylaxis.
Petitioner has not established that he has suffered this form of Table injury.
C. Six Month Severity Requirement is Not Presently Met
All claims must satisfy the statutory requirement set forth in Section 11(D) of the
Vaccine Act, which requires that a petitioner suffer the residual effects or complications
of his injury for more than six months after vaccine administration (or, alternatively, die or
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require inpatient hospitalization and surgical intervention as a result of his vaccine injury,
neither of which (thankfully) occurred in the present case). The Vaccine Act obligates a
petitioner to show, by preponderant evidence, that his alleged condition is the residual
effects or complications of his vaccine-related injury. Unrelated subsequent harm, even if
parallel to the initial injury, is not enough. See, e.g., Pearson v. Sec'y of Health & Hum.
Servs., No. 17-489V, 2019 WL 1150044, at *11 n.13 (Fed. Cl. Feb. 7, 2019) (finding
symptoms could not satisfy the six-month severity requirement because petitioner failed
to persuasively link the alleged residual effects to her alleged initial anaphylaxis-type
reaction); Price v. Sec'y of Health & Human Servs., No. 11-442V, 2015 WL 7423070, at
*7 (Fed. Cl. Spec. Mstr. Oct. 29, 2015) (awarding compensation to petitioner who
experienced Table anaphylaxis that caused ongoing seizures for more than six months).
The single anaphylactic event must thus be demonstrated to have resulted in some
subsequent symptoms or complications that persisted or unfolded for at least six months
thereafter. For example, a petitioner who faints from the anaphylaxis and then hurts
himself, requiring six or more months of treatment, would be able to show severity.
Petitioner asserts that his purported anaphylaxis reaction caused him to suffer an
allergic reaction that resulted in a sudden decrease in blood oxygen levels and an
increase in blood pressure, resulting in vitreous hemorrhaging. Petition at 2, 7. Further,
Petitioner alleges he suffered these injures for more than six months. Id.
In this case, to meet the six-month severity requirement Petitioner would need to
preponderantly show that his changes in blood pressure were casually linked to his initial
anaphylaxis on October 31, 2018. No physician associated his blood pressure changes
with the flu vaccination. In fact, when Petitioner reported his vision loss was due to his flu
shot “because that is what made his blood pressure go so high”, Dr. Bryson noted that
was “not a likely reaction to the influenza vaccine”. Ex. 2 at 11. Dr. Bryson also noted that
Petitioner’s blood pressure was “markedly high on multiple occasions aside from surround
the time of his influenza vaccine.” Id.
Additionally, Petitioner would need to establish that the changes in his blood
pressure from the vaccination caused his vitreous hemorrhage. Again, the records do not
support this assertion. When Petitioner attributed his vision problems to coughing and
high blood pressure, the records note that Dr. Fay doubted any changes in blood pressure
caused 	his 	vision 	problems, 	instead 	saying 	it 	was 	“probably 	from 	diabetes 	and
[hypertension].” Ex. 2 at 4. Further, Petitioner had a history of poorly controlled chronic
issues including high blood pressure.
The onset of Petitioner’s vision problems is also not explained, further undermining
the allegations that the vaccine was somehow linked to an increase in blood pressure
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and ultimately vitreous hemorrhaging. When Petitioner first reported vison loss in
December of 2018, his symptoms were described as starting in the middle or end of
November. Ex. 3 at 1; Ex. 4 at 1. Petitioner provides no reasoning as to why an alleged
blood pressure change would cause vison problems weeks later.
The evidence on the question of severity thus currently tips against a favorable
finding. But I will allow Petitioner the chance to supplement the record on this vital claim
element.
Conclusion
For the reasons set forth above, Petitioner’s Table Anaphylaxis Claim is
dismissed.
Petitioner shall show cause why his claim should not be dismissed for failure
to meet the six-month severity requirement. He shall file any additional evidence
needed by no later than January 9, 2026.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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