CANNON v. SECRETARY OF HEALTH AND HUMAN SERVICES

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-490V
TYHIEM CANNON,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Chief Special Master Corcoran
Filed: November 17, 2025
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On January 11, 2021, Tyhiem Cannon filed a Petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges a Table claim – that he suffered a shoulder injury related
to vaccine administration (“SIRVA”) after receiving an influenza (“flu”) vaccine on
November 11, 2020. Id. The case was assigned to the Special Processing Unit of the
Office of Special Masters (the “SPU”).
For the reasons set forth below, I find it more likely than not that Petitioner can
establish the Act’s “severity requirement,” and that the onset of his injury occurred within
48 hours of the subject vaccination as alleged. Additionally, he has satisfied all other
1 Because this Ruling contains a reasoned explanation for the action in this case, I am required to post it
on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002.
44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services).
This means the Ruling will be available to anyone with access to the internet. In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the
identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
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requirements for the claim. I therefore find that Petitioner is entitled to compensation in
this case.
I. 	Relevant Procedural History
Approximately 16 months after initiating his claim, Petitioner filed his vaccination
record, one chiropractic medical record, a “medical report” authored by his chiropractor
on December 13, 2021, and a declaration, followed by a statement of completion. ECF
Nos. 15, 17. Respondent thereafter determined in the summer of 2023 that this matter
was not appropriate for compensation, and he filed his Rule 4(c) Report defending this
case on October 23, 2023.3 ECF No. 30.
Respondent argues that Petitioner has failed to establish the Vaccine Act’s
severity requirement – specifically, that the residual effects of the alleged injury did not
last for more than six months after the November 11, 2020 vaccination. Rule 4(c) Report
at 5 (citing Section 13(a)(1)(A)). After a thorough review of Respondent’s arguments, I
issued an Order to Show Cause – outlining the critical deficiencies in the record
regarding the statutory severity requirement.4 See generally ECF No. 41. In response,
Petitioner submitted a supplemental declaration and a supplement statement from his
treating chiropractor. ECF Nos. 43-45. Respondent thereafter maintained his position
to defend this case. ECF No. 47. This matter is thus now ripe for consideration.
II. 	Petitioner’s Medical History
The medical record evidence is extremely limited in this case, consisting only of
Petitioner’s vaccination record and a 17-page chiropractic record. ECF Nos. 15-17. At
age 46, he received the subject vaccination in his right deltoid on November 11, 2020.
Ex. 1 at 2.
Approximately three weeks post vaccination (November 30, 2020), Petitioner saw
3 Along with the filing of Respondent’s Rule 4(c) Report, Respondent submitted a motion to preserve
evidence, specifically social media posts created by Petitioner that Respondent asserted were potentially
relevant to the issue of severity. ECF No. 31. Petitioner filed the requested social media posts in December
2023, and Respondent deemed the effort sufficient to comply with his concerns. ECF Nos. 36, 38, 40. I will
note that it appears that the requested social medical posts submitted by Petitioner (dated October 2,
2022, October 29, 2022, and September 28, 2023) do not shed much light on the issue of whether
Petitioner’s injury persisted for more than six months post onset, as they are dated nearly two years post
vaccination and one-and-a-half years (at the earliest) after Petitioner’s last post-vaccination visit on April
23, 2021. Nonetheless, such posts may ultimately be relevant in determining an appropriate amount of
damages to be awarded. A more thorough discussion of such evidence is thus not necessary at this time.
4 My Order to Show Cause did not address Respondent’s contentions regarding Table onset.
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his chiropractor (whom he also saw for unrelated but concurrent low back pain) reporting
“rt [sic] shoulder pain after a flue [sic] shot, on 11/11/20.” Ex. 2 at 10. Upon examination,
Petitioner exhibited decreased range of motion (“ROM”) of the right shoulder to varying
degrees: flexion measured at 115/180 degrees, extension at 20/50, abduction at
117/180, adduction at 23/50, internal rotation at 47/90, and external rotation at 51/90. Id.
The chiropractor diagnosed Petitioner with “rt [sic] shoulder, lumbar sprain/strain.” Id. at
11. Accordingly, the treatment plan contains notations regarding both the right shoulder
and lumbar spine, including “electro-muscle stimulation, myofascial release, chiropractic
manipulation, therapeutic exercises 30 minutes to increase [ROM], mobilize, stabilize of
the lumbar spine.” Id. The chiropractor’s home instructions for Petitioner included “walk,
stretches 30 minutes resume exercises below soreness threshold.” Id.
On December 2, 2020, Petitioner returned to his chiropractor. Ex. 2 at 11. The
same notation appears regarding the onset of Petitioner’s right shoulder pain – that it
began “after a flue [sic] shot.”5 Id. Petitioner continued to exhibit decreased ROM on
examination (along with findings relevant to his lumbar spine). Id. The diagnoses and
treatment plan were largely 	unchanged; however, the chiropractor 	added to the
treatment plan to “increase [ROM], mobilize, stabilize of the rt [sic] shoulder, lumbar
spine.” Id. (emphasis added).
Petitioner 	attended 	regular 	follow-up 	chiropractic 	visits 	thereafter. 	During
Petitioner’s visit on January 16, 2021, he continued to exhibit reduced ROM. Ex. 2 at 11.
The treater’s diagnoses, treatment plan, and home instructions did not change. Id. From
February to early April 2021, Petitioner returned to his chiropractor for right shoulder
(and low back) pain on five occasions – on February 1, February 22, March 5, March 15,
and April 9, 2021. See id. at 12-13. Petitioner exhibited diminished ROM during each
session, and the chiropractor did not change the diagnoses or treatment plan regarding
Petitioner’s right shoulder. See id.
Petitioner’s last chiropractic follow-up visit memorialized in the contemporaneous
medical records occurred on April 23, 2021 – approximately five months and twelve days
post-vaccination. Ex. 2 at 14. The chiropractor’s physical examination of Petitioner’s right
shoulder showed decreased ROM, including diminished flexion measured at 163/180
degrees, extension at 42/50, abduction at 158/180, adduction at 40/50, internal rotation
at 66/90, and external rotation at 67/90. Id. The visit notes contain the same diagnoses
of “rt [sic] shoulder, lumbar sprain/strain,” with unchanged treatment plans and home
instructions, specifically “electro-musclestimulation [sic], myofascial release, chiropractic
manipulation, therapeutic exercises 30 minutes to increase [ROM], mobilize, stabilize of
5 This notation is repeated in the chief complaint section of every chiropractic visit during Petitioner’s
treatment course for his right shoulder (November 2020 – April 2021). See Ex. 2 at 11-14.
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the rt [sic] shoulder, lumbar spine” and to “walk, stretches 30 minutes resume exercises
below soreness threshold.” Id. No other medical record evidence has been submitted.
III. 	Declaration and Other Evidence
A. Declaration Evidence
In his first declaration (authored on June 2, 2022), Petitioner maintains that he
experienced immediate shoulder pain upon injection. See generally Ex. 4. Specifically,
Petitioner attests that “[w]hen [he] received the vaccine, the pain [he] felt was immediate
and it progressively got worse.” Id. ¶ 2.
Petitioner also provides more context to his limited medical care, explaining that
before receiving the subject vaccine, he did not have a primary care physician, nor did
he “ever visit an urgent care.” Ex. 4 ¶ 1. Petitioner notes that when he decided to go to
the doctor after the vaccination, he did not “have any medical insurance because [he]
was let go from work and it’s a pandemic so [he] can’t work[;]” he therefore had “to be
a cash patient in order to receive treatment.” Id. ¶ 2. More so, Petitioner expresses that
he “wish[ed he] could’ve received more treatment but financially [he] couldn’t afford it.
So, [he] just had to deal with [the shoulder pain].” Id. Petitioner does not describe the
timeline of his injury with any further detail in this filing. See generally id. ¶¶ 1-6.
Thereafter, and in direct response to my Order to Show Cause, Petitioner
submitted a supplemental declaration (dated September 26, 2024), describing his injury
course in more detail. Ex. 7. Specifically, he attests that “from April 2021 to December
2021, [he] experienced significant right shoulder pain[.]” Id. ¶ 1. He explains that “[a]t
this time, [he] was laid off from [his] job and [his] then wife was also unemployed. No
medical insurance . . . and we were still in the Pandemic.” Id. ¶ 2. He attests that he
could not afford to keep getting treatment “which is why there is a gap in treatment.” Id.
During this “gap,” Petitioner states, he alternatively used “over the counter pain
meds, [] hyper ice shoulder therapy and pain cremes.” Ex. 7 ¶ 2. He notes that in
January 2021, he bought a device to provide heat and vibration to his shoulder, which
he “wore regularly . . . especially . . . during the spring and summer of 2021,6 when [he]
was unable to afford to be seen for formal care.” Id. Petitioner also points to his role as
a caregiver to his mother with Parkinson’s as a reason he “didn’t have time to go back
to be seen back in 2021.” Id. ¶ 3. No other declaration or affidavit evidence has been
6 Along with his supplemental declaration, Petitioner submitted an unauthenticated copy of a receipt for his
purchase of this shoulder device (dated January 30, 2021). Ex. 7 at 3. He also submitted unauthenticated
images of what appears to be Petitioner wearing the device, dated March 6, 2021. Id. at 6-8.
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submitted.
B. Other Supporting Evidence
Petitioner has submitted a “medical report” authored by his treating chiropractor
and dated December 13, 2021 – approximately eight months since Petitioner’s last visit
in April of that year. Ex. 3. The chiropractor described Petitioner’s “over 6 months of
consistent [c]hiropractic care” listing the “first treatment” date as “11/30/2020” and the
“last treatment” date of “12/11/2021.” See id. at 1-2. The treater also noted Petitioner’s
chief complaint of right shoulder pain and stiffness that “began shortly after receiving
the [i]nfluenza vaccination into the right upper arm.” Id. at 1.
The chiropractor’s report included physical examination findings – but without
further specifying the date commensurate with those findings. Ex. 3 at 1. The
chiropractor wrote that Petitioner exhibited “pain upon palpation, pain upon active and
passive motion, decreased [ROM], and mild swelling/inflammation around the vaccine
injection site.” Id. He included the degrees of ROM as follows: flexion - 126/180,
extension - 27/50, abduction - 128/180, adduction - 29/50, internal rotation - 51/90,
external rotation - 56/90. Id. The treater also wrote that “[d]uring the evaluation of the
right shoulder, [Petitioner] stated that the pain interferes with his ability to complete
[ADLs] . . . there was muscle guarding present.” Id. The chiropractor diagnosed
Petitioner with right shoulder pain and recommended future care based on Petitioner’s
ongoing symptoms, including an MRI and evaluations with orthopedics, neurology, and
internal medicine. Id. at 2.
Additionally (and in response to my Order to Show Cause), Petitioner submitted
a supplemental medical report from this treating chiropractor, dated September 27, 2024
– now over three years since Petitioner’s last visit with this treater on April 23, 2021, and
nearly four years post-vaccination. Ex. 8. The chiropractor vaguely asserted that
Petitioner “continued to experience pain and right shoulder symptoms and engaged in
self-care during” the period from April 23 to December 11, 2021. Id. at 1. According to
the 	chiropractor, 	Petitioner’s 	pain 	“became 	so 	severe,” 	that 	he 	returned 	to 	the
chiropractor’s office “to be seen for treatment on December 11, 2021.” Id. The
chiropractor alleges that during the December 11 th visit, Petitioner “reported that the right
shoulder pain had continued and was affecting his ability to perform daily activities.” Id.
IV. 	Fact Findings and Ruling on Entitlement
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
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Section 11(c)(1). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement,7 a
petitioner must establish that he 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).
Section 11(c)(1) also contains requirements concerning the type of vaccination
received and where it was administered, the duration or significance of the injury, and the
lack of any other award or settlement. See Section 11(c)(1)(A), (B), (D), and (E). With
regard to duration, a petitioner must establish that he suffered the residual effects or
complications of such illness, disability, injury, or condition for more than six months after
the administration of the vaccine. Section 11(c)(1)(D).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). A
vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests
all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
7 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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A special master must consider, but is not bound by, any diagnosis, conclusion,
judgment, 	test 	result, 	report, 	or 	summary 	concerning 	the 	nature, 	causation, 	and
aggravation of petitioner’s injury or illness that is contained in a medical record. Section
13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence.
The records contain information supplied to or by health professionals to facilitate
diagnosis and treatment of medical conditions. With proper treatment hanging in the
balance, 	accuracy 	has 	an 	extra 	premium. 	These 	records 	are 	also 	generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, 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 at 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).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La Londe
Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184 at 204 (2013) (citing § 12(d)(3); Vaccine
Rule 8); see also Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir.
1993) (holding that it is within the special master’s discretion to determine whether to
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afford greater weight to medical records or to other evidence, such as oral testimony
surrounding the events in question that was given at a later date, provided that such
determination is rational).
A. Factual Findings Regarding a Table SIRVA
After a review of the entire record, I find that a preponderance of the evidence
supports the conclusion that Petitioner has satisfied the QAI requirements for a Table
SIRVA.
1. 	Petitioner Has No Prior Right Shoulder Condition or Injury
The first requirement for a Table SIRVA is a lack of problems associated with the
affected shoulder prior to vaccination that would explain the symptoms experienced after
vaccination. 42 C.F.R. § 100.3(c)(10)(i). Respondent has not contested that Petitioner
meets this criterion, and there is nothing in the filed evidence to suggest otherwise.
2. 	Onset 	of 	Petitioner’s 	Injury 	Occurred 	within 	48 	Hours 	of 	his
Vaccination
Respondent argues Petitioner cannot establish onset, in part because his closest
medical record came less than three weeks post vaccination, on November 30, 2020.
Rule 4(c) Report at 8. More so, even though Petitioner described his pain during that visit
as beginning “after a flue [sic] shot, on 11/11/20[,]” this report is “exceedingly vague and
is mimicked at each of his chiropractor follow-up visits without any further detail.” Id.
(internal citations omitted).
These objections are ultimately unpersuasive, however, when considered against
the totality of the evidence. The aforementioned medical records from Petitioner’s
chiropractic visits, though limited in both quantity and detail, establish that Petitioner
reported onset close-in-time to the subject flu vaccination, that he sought treatment the
same month as his vaccination, and that he indeed was experiencing symptoms in the
relevant timeframe.
First, the records show that Petitioner sought treatment in a relatively timely
manner (i.e., 19 days after vaccination). It is common for SIRVA petitioners to delay
seeking treatment, thinking the injury will resolve on its own, since patients are often told
by medical providers at the time of vaccination to expect some soreness and pain for a
period of time after. Here, however, the delay was not appreciably long – and the fact that
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treatment was sought in a relatively short timeframe is supportive of a close-in-time onset,
especially when the medical record is as limited as it is in this case.
Second, although it appears that Petitioner’s report regarding the onset of his
symptoms was indeed carried over from visit to visit, Petitioner affirmatively linked his
shoulder pain to the November 11, 2020 flu vaccine – beginning with the November 30th
treatment encounter. Ex. 2 at 10. This reporting provides additional support for Table-
consistent onset. More so, Petitioner’s statements to his chiropractor regarding the onset
of his right shoulder pain corroborate the contention in Petitioner’s declaration regarding
immediate onset. See Ex. 4 ¶ 2.
Accordingly, I find there is preponderant evidence that establishes the onset of
Petitioner’s right shoulder pain more likely than not occurred the same day as vaccination,
and thus within the Table timeframe. To find otherwise, the record would have to contain
instances of contradictory onset, which are not present here.
3. 	Petitioner’s Pain was Limited to his Right Shoulder
The third criterion for a Table SIRVA states that the pain and reduced ROM must
be limited to the shoulder in which the subject vaccination was administered. 42 C.F.R. §
100.3(c)(10)(iii). Respondent has not contested that Petitioner meets this criterion, and
there is nothing in the filed evidence to find this element not met.
4. 	There is No Evidence of Another Condition or Abnormality
The last criterion for a Table SIRVA states that there must be no other condition or
abnormality 	which 	would 	explain 	a 	petitioner’s 	current 	symptoms. 	42 	C.F.R. 	§
100.3(c)(10)(iv). Respondent does not raise an objection to this criterion and based on
the existing record I therefore find it met.
B. Factual Findings Regarding Severity
While Petitioner has satisfied his burden under the QAI for a Table SIRVA, the next
(and more critical but closely-contested) issue to be resolved is whether Petitioner has
demonstrated that he suffered “residual effects or complications of [the injury alleged] for
more than six months after the administration of the vaccine,” as required for eligibility
under the Vaccine Program. Section 11(c)(1)(D)(i).
A petitioner cannot establish the length or ongoing nature of an injury merely
through 	self-assertion 	unsubstantiated 	by 	medical 	records 	or 	medical 	opinion. 	§
13(a)(1)(A). To satisfy the six-month requirement, “[a] potential petitioner must do
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something more than merely submit a petition and an affidavit parroting the words of the
statute.” Faup v. Sec’y of Health & Hum. Servs., No. 12-87V, 2015 WL 443802, at *4
(Fed. Cl. Spec. Mstr. Jan. 13, 2015). Rather, a petitioner is required to “submit supporting
documentation which reasonably demonstrates that the alleged injury or its sequelae
lasted more than six months[.]” Id.
Additionally, “the fact that a petitioner has been discharged from medical care does
not necessarily indicate that there are no remaining or residual effects from her alleged
injury.” See Morine v. Sec’y of Health & Hum. Servs., No. 17-1013, 2019 WL 978825, at
*4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019); see also Herren v. Sec’y of Health & Hum. Servs.,
No. 13-1000V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014) (finding that
a petitioner suffered from residual symptoms that due to their mild nature did not require
medical care and thus that “a discharge from medical care does not necessarily indicate
there are no residual effects”). In another SPU case, where a petitioner’s last treatment
was at five months and nine days, the petitioner was found to meet the six-month
requirement. Schafer v. Sec’y of Health & Hum. Servs., No. 16-0593V, 2019 WL 5849524
(Fed. Cl. Spec. Mstr. Aug. 28, 2019). In that case, based on the petitioner’s symptomology
and progression, the special master noted that it was unlikely “that petitioner’s shoulder
symptoms would have resolved within [the next] 22 days.” Id. at *7.
As discussed above, Petitioner’s treatment records suggest that the onset of his
symptoms began within 48 hours of his November 11, 2020 vaccination (likely on the day
of vaccination) – or by no later than November 13, 2020. Therefore, he logically must
demonstrate that his right shoulder injury continued to or through May 13, 2021 (at the
latest). See, e.g., Herren, 2014 WL 3889070, at *2.
The records discussed above establish that on April 23, 2021 (merely 20 days
shy of the severity “cut-off”), Petitioner exhibited diminished ROM of the right shoulder
in all directions upon examination. See Ex. 2 at 14 (measuring Petitioner’s ROM at the
following degrees: flexion measured at 163/180 degrees, extension at 42/50, abduction
at 158/180, adduction at 40/50, internal rotation at 66/90, and external rotation at 67/90).
The diagnosis and treatment plan on that date still included those pertaining to the right
shoulder and Petitioner received right shoulder treatment on that date. Id. The records
from Petitioner’s last chiropractic visit on April 23, 2021, thus do not show that
Petitioner’s symptoms had resolved by this date but were instead likely ongoing.
I will acknowledge, however, that the April 23rd records only vaguely refer to home
instructions, including to “walk” and “stretches 30 minutes resume exercises below
soreness threshold.” Ex. 2 at 14. The ambiguousness of these home instructions thus
provides some reason to doubt whether such recommendations were made to address
Petitioner’s lumbar spine or right shoulder symptoms. Still, the physical examination
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findings of the right shoulder here are enough to support the conclusion that Petitioner’s
injury was not likely to resolve soon after this visit, or even within the next 20 days. See,
e.g., Schafer, 2019 WL 5849524, at *7 (finding based on a petitioner’s reports and a
treater’s proposed treatment course during the last visit pre-gap in care, that an injury
was not likely to resolve soon after that visit). This is especially true considering the slow
rate 	of 	improvement 	in 	these 	measurements 	throughout 	Petitioner’s 	chiropractic
treatment course. See id. at 10-14.
Additionally, I do not construe Petitioner’s decision to forego treatment after April
2021 as compelling evidence that his injury had fully resolved by that time. Rather,
Petitioner’s 	decision 	to 	cease 	treatment 	thereafter 	has 	a 	sufficiently 	reasonable
explanation (that he had lost his job and thus did not have medical insurance, making him
a cash patient, and thus he could not afford ongoing treatment, especially during the
Pandemic). See Ex. 4 ¶¶ 1-6. I have previously given weight to the fact that “at the outset
of the [P]andemic, individuals reasonably curtailed (or even avoided) medical treatment
for non-emergency matters, and that in many cases this could explain a gap in treatment.”
Keeling v. Sec’y of Health & Hum. Servs., No. 20-2048V, Slip Op. 32, (Fed. Cl. Spec.
Mstr. Oct. 19, 2022). It is also persuasive and helpful to Petitioner on this point that he
did not obtain any medical treatment after this time, including for any non-shoulder, acute
issues.
Although I have determined Petitioner’s injury extended through the May 13, 2021
severity “cut-off” date, I must note, however, that I give limited weight to Petitioner’s
chiropractor’s December 13, 2021 “medical report” in resolving the issue of severity. This
document 	purports 	to 	show 	findings 	from 	a 	physical 	examination 	(perhaps 	from
December 2021), but the date of those findings is not further specified (outside of the date
the report was drafted on December 13, 2021). More so, the noted physical findings such
as “mild swelling/inflammation around the vaccine injection site,” were not contained in
the contemporaneous records created closer in time to the subject vaccination – at a time
when 	such 	a 	physical 	finding 	would 	have 	been 	more 	likely 	to 	be 	present. 	This
inconsistency in physical examination findings thus causes me to question the veracity of
the contents of the December 2021 report.
In addition, the December 2021 report does not describe with any specificity the
extent of Petitioner’s ongoing pain after the April 23, 2021 visit, and before Petitioner
allegedly returned to care in December 2021 – thus failing to directly bear on the issue of
severity at hand. Rather, the treater’s report merely states that Petitioner’s pain and
mobility restrictions continued for more than six months despite treatment. Ex. 3 at 1. And
this report was prepared over a year post-vaccination, almost eight months after
Petitioner’s last visit at the chiropractor’s office in April of the same year, and after the
filing of the instant claim.
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Likewise, I am not much relying on the filings submitting in direct response to my
Order to Show Cause (Ex. 7 - Petitioner’s supplemental declaration and Ex. 8 -
Petitioner’s chiropractor’s supplemental statement), as they were drafted in pursuit of
litigation (and after the critical deficiencies in the record had been identified). Plus, similar
to the earlier declaration and treater statement, neither filing describes with sufficient
particularity the course of Petitioner’s injury during the period after he ceased treatment
in April 2021 and through the six-month “cut-off” in May 2021. Rather, both filings vaguely
refer to ongoing pain during the time between Petitioner’s chiropractor visits in April and
(allegedly) December 2021. And, while Petitioner points to his use of a shoulder sleeve
in January and March of 2021, this evidence does little to advance his arguments
regarding ongoing sequalae through May of that year. Still, to the extent that Petitioner’s
supplemental statements are corroborated by those in his original declaration (i.e., his
explanation 	for 	ceasing 	care 	due 	to 	financial 	difficulties 	and 	not 	having 	medical
insurance), I will give such statements appropriate weight. Compare Ex. 4 ¶ 2, with Ex. 7
¶ 2. Thus, after consideration of the entire record, the evidence supports a finding that
severity has been met.
C. Other Requirements for Entitlement
In 	addition 	to 	establishing 	a 	Table 	injury, 	a 	petitioner 	must 	also 	provide
preponderant evidence of the additional requirements of Section 11(c). Respondent does
not further dispute that Petitioner has satisfied these requirements in this case, and the
overall record contains preponderant evidence to fulfill these additional requirements.
The record shows that Petitioner received a flu vaccine intramuscularly in his right
shoulder on November 11, 2020, in California. Ex. 1 at 2; see Section 11(c)(1)(A)
(requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i)(I) (requiring administration
within the United States or its territories). There is no evidence that Petitioner has
collected a civil award for his injury. Pet. ¶ 5; Section 11(c)(1)(E) (lack of prior civil award).
As stated above, I have found that the onset of Petitioner’s right shoulder pain was within
48 hours of vaccination. See 42 C.F.R. § 100.3(c)(10)(ii) (setting forth this requirement).
This finding also satisfies the requirement that Petitioner’s first symptom or manifestation
of onset occur within the time frame listed on the Vaccine Injury Table. 42 C.F.R. §
100.3(a)(XIV)(B) (listing a time frame of 48 hours for a Table SIRVA following receipt of
the influenza vaccine). Therefore, Petitioner has satisfied all requirements for a Table
SIRVA. Additionally, as determined above, Petitioner has established the six-month
severity requirement. See Section 11(c)(1)(D)(i) (statutory six-month requirement).
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Conclusion
Petitioner 	has 	just 	barely 	established 	the 	Vaccine 	Act’s 	temporal 	severity
requirement, and that his injury is consistent with a Table SIRVA claim. Additionally, he
has satisfied all other requirements for compensation. I therefore find that Petitioner is
entitled to compensation in this case.
Compared to other SIRVA injuries, however, Petitioner’s right shoulder pain and
related symptoms do not appear to have been especially severe, even at the time he did
obtain treatment. Significantly, his treatment course consisted of a handful of chiropractic
visits and conservative home care only. And, he did not seek any follow up care after
December 2021 – which underscores the very mild nature of his injury.
Thus, although the medical records do allow for the conclusion that Petitioner’s
injury meets the Act’s severity requirements, those same records establish an injury that
will not entitle Petitioner to anything more than an extremely modest award of pain and
suffering even at full value of this case (likely not to exceed $5,000.00 - $10,000.00). I
encourage the parties to engage in efforts towards the informal resolution of damages
with that parameter in mind. A separate Damages Order will be issued concurrent with
the filing of this Ruling.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
Case 1:21-vv-00490-UNJ Document 52 Filed 12/18/25 Page 13 of 13