1

In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 18-1921V

Filed: January 25, 2021

PUBLISHED

MARYLYN LAVENDER,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.

James Vincent Lopez, U.S. Department of Justice, Washington, DC, for respondent.

FINDING OF FACT1

On December 14, 2018, petitioner filed a petition under the National Childhood 

Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012)2, primarily alleging that as a result 

of an influenza (“flu”) vaccination that she received on September 16, 2016, she 

suffered a Table Injury of Shoulder Injury Related to Vaccine Administration (“SIRVA”)

but also alternatively that she suffered a shoulder injury caused-in-fact by her 

vaccination. Respondent recommended that compensation be denied, arguing, inter 

alia, that there is not preponderant evidence that petitioner’s shoulder pain began within 

a timeframe that would support a finding of vaccine causation, namely 48 hours for a 

SIRVA. 

For the reasons described below, I now issue the below finding of fact. I 

conclude that there is not preponderant evidence that petitioner experienced onset of 

1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will 

be posted on the United States Court of Federal Claims’ website in accordance with the E-Government 

Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic 

Government Services). This means the decision will be available to anyone with access to the 

Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact 

medical or other information the disclosure of which would constitute an unwarranted invasion of privacy. 

If the special master, upon review, agrees that the identified material fits within this definition, it will be 

redacted from public access.

2 Within this decision, all citations to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C. 

§ 300aa-10-34. 

Special Master Horner

Finding of Fact; Shoulder Injury 

Related to Vaccine 

Administration; SIRVA; 

Influenza (flu) Vaccine; Onset
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shoulder pain within 48 hours of receiving her vaccination. Further, I find that the 

evidence preponderates in favor of a finding that onset of petitioner’s shoulder pain was 

gradual and began no earlier than two weeks post-vaccination.

I. Procedural History

As noted above, petitioner initiated this claim in December of 2018. (ECF No. 1.) 

At that time, it was assigned to the Special Processing Unit (“SPU”) based on the 

allegations in the petition. (ECF No. 5.) Petitioner completed the filing of her medical 

records (Ex. 1-5), an affidavit (Ex. 6), and a further record of her vaccination (Ex. 7), 

then filed her Statement of Completion on June 21, 2019. (ECF No. 10.) Respondent 

subsequently filed his Rule 4(c) Report on January 2, 2020. (ECF No. 16.) Respondent 

recommended against compensation, noting that “there is no reliable, persuasive 

evidence that petitioner has an onset of SIRVA symptoms within 48 hours of 

vaccination.” (ECF No. 16, p. 5.) The case was subsequently removed from SPU and 

reassigned to me. (ECF No. 18.)

On January 16, 2020, I issued an Order to Show Cause why the case should not 

be dismissed. (ECF No. 19.) I explained that petitioner’s contemporaneous medical 

records not only failed to support her claim of a Table SIRVA, they were inconsistent 

with it. (Id. at 1.) I advised that to avoid dismissal, petitioner would need to either 

provide an offer of proof that persuasive evidence would be forthcoming to overcome 

the contemporaneous medical records or allege a different injury. (Id. at 2.) Petitioner 

subsequently filed additional records (Exs. 8, 12), a further affidavit of her own (Ex. 10), 

and witness affidavits by three other witnesses, Leah Phipps (Ex. 9), Tracy Palmer (Ex. 

11), and Danielle Ellis (Ex. 13). (ECF Nos. 22-25.)

On June 16, 2020, I held a follow up status conference. (ECF No. 26.) I advised 

that I remained concerned regarding the presumption that contemporaneous medical 

records are believed to be complete and accurate. I suggested that parties depose 

petitioner’s primary care physician, Dr. McCutcheon, whose notations were at issue. 

(Id.) The parties conducted that deposition on November 10, 2020 and filed the 

transcript on November 23, 2020 (Ex. 14). (ECF No. 30.)

Thereafter, I ordered petitioner to confirm whether she wished to file any further 

evidence before closing the record in anticipation of a finding of fact regarding onset of 

her alleged injury. (Scheduling Order (Non-PDF), 11/23/2020.) On November 25, 2020, 

petitioner confirmed that she had no further evidence to file. (ECF No. 31.) Thereafter, I 

advised that I would issue a finding of fact as to onset and the parties filed simultaneous 

briefs in support of their respective positions on January 8, 2021. (Scheduling Order 

(Non-PDF, 11/25/2020; ECF Nos. 33-34.) No responsive briefs were filed. Accordingly, 

this case is now ripe for a finding of fact resolving the onset of petitioner’s alleged 

shoulder pain.
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II. Factual History

a. Medical Records

Petitioner received the flu vaccine forming the basis of this claim on September 

16, 2016. (Ex. 7, p. 3.) She received her vaccination intramuscularly in her left deltoid. 

(Id.) There is no dispute that petitioner had no prior history of shoulder pain or 

dysfunction. (ECF No. 16, p. 1.)

Five days later, on September 21, 2016, petitioner presented to her primary care 

physician, Dr. McCutcheon, for a routine follow up for management of hyperthyroidism, 

hypertension, and trigeminal neuralgia. (Ex. 2, pp. 20-21.) Petitioner did not report any 

concerns regarding her recent vaccination or any shoulder pain. The review of systems 

indicated petitioner had no back pain, no neck pain, no joint stiffness, no muscle aches, 

and no painful joints. (Id. at 20.) However, Dr. McCutcheon did conduct a 

musculoskeletal examination of petitioner’s knees. (Id. at 21.)

Petitioner did not return for any further care from any provider until November 30, 

2016. At that time, she returned to Dr. McCutcheon with a chief complaint of “shoulder 

pain.” (Ex. 2, pp. 18-19.) The history of present illness indicates that petitioner was 

suffering left shoulder pain with no known injury. She had full range of motion, but with 

discomfort. Specifically, she reported that her pain was dull at rest, but worse lifting her 

arm, with overhead activities, or getting out of a chair. She denied any numbness or 

tingling and had been treating with Tylenol. Petitioner described her pain as “a nagging 

pain with a burning sensation in her upper arm.” Significantly, Dr. McCutcheon also 

recorded the following with regard to onset: “[Patient] reports today her left shoulder 

started hurting a couple weeks after she received the flu shot on 9/16/16.” (Ex. 2, p. 18.)

On physical examination, Dr. McCutcheon determined petitioner’s cervical spine 

was normal. (Ex. 2, p. 19.) She noted the absence of impingement, but indicated that 

petitioner was positive for tenderness to palpation over the acromioclavicular joint and 

bursa. She had no deltoid tenderness, but did have increased pain with internal and 

external rotation. (Id.) Dr. McCutcheon ordered x-rays which she interpreted as showing 

mild degenerative changes. (Id.) When petitioner presented for her x-ray exam on the 

same date, she provided a history of “[l]eft shoulder pain x 2 months, no known injury.”3

(Id. at 43.) Dr. McCutcheon’s assessment was shoulder pain (primary), primary 

osteoarthritis of the left shoulder, and bursitis. She prescribed Voltran gel. (Id. at 19.)

Two weeks later, petitioner sought care from an orthopedist, Dr. Blair, on 

December 14, 2016, on a self-referral basis. (Ex. 3, pp. 1-5.) Dr. Blair recorded a history 

of present illness that indicated petitioner was experiencing mild left shoulder pain that 

occurred occasional and was fluctuating. She described her pain as “aching, burning, 

dull, piercing, sharp, and throbbing.” (Id. at 2.) As she indicated her pain was 

3 Two months prior to petitioner’s November 30, 2016 appointment would have been the end of 

September 2016. Accordingly, this notation is consistent with Dr. McCutcheon’s notation that onset was 

two weeks post-vaccination.
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aggravated by lifting or movement. Petitioner did not associate her pain to her 

vaccination or describe any specific period of onset. Onset of her condition was 

recorded only as “gradual.” (Id.) In addition to physical examination, Dr. Blair ordered 

further x-rays which again showed degenerative joint disease of the acromioclavicular 

joint as well as reactive changes of the greater tuberosity. (Id. at 1.) Dr. Blair’s 

impression was pain in the left shoulder and bursitis of the left shoulder. (Id.) He 

administered a therapeutic injection into the subacromial space and recommended a 

home exercise plan. (Id.)

Petitioner returned to Dr. McCutcheon on January 12, 2017, with a chief 

complaint of heart palpitations. (Ex. 2, pp. 15-16.) Her shoulder pain was not addressed. 

However, on March 9, 2017, petitioner returned to Dr. Blair. (Ex. 3, pp. 6-8.) Petitioner 

reportedly experienced about two months of pain relief from her therapeutic injection, 

but by the time of this appointment the pain had returned. (Id. at 6.) Dr. Blair noted that 

petitioner had now had pain for over six months,4 but onset was not otherwise 

discussed. (Id.) Dr. Blair’s records indicate the date of petitioner’s first orthopedic 

appointment as the date of onset of her condition. (Id.) His impression remained 

unchanged and he recommended an MRI along with continuation of the home exercise 

plan. (Id.) On April 5, 2017, petitioner returned to Dr. Blair for her MRI results. (Id. at 9-

11.) Onset of petitioner’s shoulder pain was not discussed, but Dr. Blair added a rotator 

cuff tear to his assessment. (Id. at 9.) Her MRI showed mild tendinosis of the 

supraspinatus tendon, a partial tear at the humeral insertion, and fluid within the 

acromioclavicular joint with adjacent soft tissue edema. (Ex. 8, p. 30.) This was 

interpreted as raising suspicion for inflammatory acromioclavicular arthritis.5 (Id.) 

On April 24, 2017, petitioner again returned to Dr. McCutcheon for routine follow 

up without any mention of her shoulder condition. (Ex. 2, p. 11-13.) She did not seek 

any further care from any provider until autumn. On October 26, 2017, petitioner 

returned to her primary care provider and saw nurse practitioner Edwards for a six 

month follow up and lab work. (Ex. 2, pp. 8-10.) Her shoulder condition was not 

addressed and no further primary care records were filed.

Petitioner returned to Dr. Blair on November 15, 2017. (Ex. 3, pp. 12-15.) Onset 

of petitioner’s condition was not discussed, but Dr. Blair’s impression was changed to 

reflect primary osteoarthritis of the left shoulder. (Id. at 12.) He recommended physical 

therapy which she began on November 24, 2017. (Ex. 3, p. 12; Ex. 4, p. 11.) On her 

handwritten physical therapy intake form, petitioner indicated that her symptoms began 

on “9-16-16” and “after a flu vaccine.” (Ex. 4, p. 6.) Under case history, the physical 

therapist indicated petitioner had a one-year history of left shoulder pain.6 (Id. at 11.)

4 This would place onset of petitioner’s shoulder pain prior to her September 16, 2016 flu vaccination.

5 Unlike petitioner’s prior x-ray report, the history contained in the MRI report does not discuss onset. (Ex. 

8, pp. 30.)

6 This would place onset around the time of petitioner’s November 30, 2016 appointment with Dr. 

McCutcheon rather than around the time of her September 16, 2016 vaccination.
5

Petitioner’s physical therapy continued until her discharge on January 18, 2018; 

however, the initial onset of her shoulder pain was not further discussed. (Exs. 4, 5.)

Petitioner returned to Dr. Blair on January 31, 2018. (Ex. 3, pp. 18-21.) Petitioner 

noted that her physical therapy had helped improve her symptoms. (Id. at 18.) Dr. 

Blair’s assessment remained pain in the left shoulder, bursitis of the left shoulder, and 

primary osteoarthritis of the left shoulder. (Id.) Continued conservative treatment, 

including home exercise, was discussed. (Id.) The initial onset of her injury was not 

discussed. Petitioner was released to follow up as needed and no further records were 

filed.

b. Affidavits

The record of this case contains five affidavits. Petitioner signed two affidavits, 

one in August of 2018 and one in March of 2020. Only the March of 2020 affidavit 

contains any narrative detail. The three additional witness affidavits were all completed 

in March of 2020. For purposes of this finding of fact I assume the affidavits reflect 

honest recollections; however, in weighing the evidence of record I take note of the fact 

that these recollections have been memorialized approximately three and a half years 

after the events at issue.

i. Petitioner

In her initial affidavit petitioner indicated that “[i]mmediately following the flu 

vaccine, I began experiencing pain in the left shoulder.” (Ex. 6.) However, she did not 

otherwise explain the circumstances of her medical history. After prompting by the 

above-discussed Order to Show Cause, petitioner filed a more detailed affidavit. (Ex. 

10.)

In her second affidavit, petitioner indicated that the flu vaccine at issue in this 

case was her first flu vaccine. (Ex. 10, p. 1.) She described the injection as a painful

“stab” and noted that she flinched. (Id.) She described an “instant” burning pain at the 

injection site. She was advised, by both the pharmacist and a pamphlet, to expect 

soreness and discomfort for a few days. (Id.)

Petitioner indicated that her pain worsened over the course of six days. (Id. at 2.) 

She states: “I recall for a fact that when I received the flu shot that’s when the pain 

started, first in the arm at the injection site and then I felt it all over my left shoulder 

area. The pain was a dull pain at the injection site but as it progressed it became more 

of a sharp pain. It was not getting better.” (Id.)

With regard to her September 21, 2016, appointment with Dr. McCutcheon, 

petitioner indicates that “I saw no reason to mention it because I was told to expect pain 

at the injection site. I didn’t think I needed to complain about a shot five days later when 

I was told to expect pain and discomfort for a few days.” (Id.) Petitioner indicates that it 
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was not until after a week passed that she began to question why the pain was not 

resolving and asking people if they were familiar with this issue. (Id.)

With regard to her November 30, 2016 appointment with Dr. McCutcheon, 

petitioner states:

I saw Dr. McCutcheon and I did not tell her my “left shoulder started hurting 

a couple of weeks after” my vaccine, I told her I had a flu shot that hurt my 

arm, that my shoulder was hurting, and that it kept getting worse. I didn’t 

discuss it much with Dr. McCutcheon because she blew me off when I 

asked if it was possible to be hurt by the flu shot. She said, “no way.” She 

was not supportive at all and did not believe it was possible. So, I dropped 

it. This is the same doctor that I was scheduled to see a few days after my 

husband died, told her and she offered no comfort whatsoever. She was all 

business. It’s because of this unsympathetic attitude that she is no longer 

my doctor.

(Id.)

With regard to her December 14, 2016 orthopedic appointment with Dr. Blair, 

petitioner disputes that the onset of her shoulder pain was gradual; however, she did 

not dispute that she described her pain to Dr. Blair as gradual. (Id. at 3.) Rather, she 

indicated that she does not recall using that word. (Id.)

Petitioner averred that she never had any prior problems with her left shoulder. 

(Id.) Apart from the above-discussed records, she suggests that her medical records 

otherwise reflect that onset of her pain was immediate. (Id.)

ii. Leah Phipps

Ms. Phillips indicates that she has known petitioner for 20 years and vouches for 

her honesty. (Ex. 9.) She does not indicate her exact relationship with petitioner but 

does indicate that they work together in a bible study group. (Id.) Ms. Phillips relays in 

some detail a conversation with petitioner in which petitioner indicated she was 

experiencing significant post-vaccination shoulder pain. (Id.) However, Ms. Phillips 

cannot recall whether she spoke to petitioner on the day of her vaccination, cannot 

recall the date of petitioner’s vaccination, and is no more specific than to say that their 

interaction occurred after “the following few days.” (Id.) Ms. Phillips does believe this 

occurred in the autumn, because she was married in mid-December of 2016 and she 

did not see petitioner often after that. (Id.)

iii. Tracy Palmer

Ms. Palmer indicates that she was a student in a bible study group for which 

petitioner was the instructor. (Ex. 11.) According to Ms. Palmer, the bible study group 

met on Friday. She recalled that during one meeting in September petitioner indicated 
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she would be going to get her flu shot that day. (Id.) Ms. Palmer did not see petitioner 

again until one week later when the group met again. (Id.) At that point and going 

forward, petitioner complained of shoulder pain she attributed to her vaccination. (Id.)

iv. Danielle Ellis

Like Ms. Phillips, Ms. Ellis indicates that she has worked with petitioner in their 

shared ministry. (Ex. 13.) Like Ms. Palmer, Ms. Ellis recalls petitioner telling her that she 

was experiencing shoulder pain related to her vaccination about one week following her 

vaccination. (Id.) Unlike Ms. Palmer, Ms. Ellis recalls that as a result of their bible 

instruction she typically sees petitioner about 3-4 times per week during September. 

(Id.)

c. Dr. McCutcheon’s Deposition

Dr. McCutcheon describes her practice at the time of petitioner’s vaccination as a 

family care practice in which she saw approximately 20-25 patients a day. Dr. 

McCutcheon has 25 years of experience as a general practitioner. (Ex. 14, p. 7, 32-33.) 

According to Dr. McCutcheon, it is common for patients to be seen with multiple 

complaints and nothing prevents a patient with her practice from raising additional 

complaints during their appointments. (Id. at 17.) Dr. McCutcheon has treated petitioner 

for a number of conditions, including hypertension, hyperparathyroidism, knee and shin 

pain, and neuralgia. (Id. at 35-36.) Dr. McCutcheon felt she had a good doctor-patient 

relationship with petitioner and that they communicated effectively. (Id. at 36.)

Unsurprisingly Dr. McCutcheon did not have a specific recollection of her 

encounters with petitioner. (Id. at 17-18, 24-26.) Her testimony was based upon her 

review of her medical record. (Id. at 26.) Dr. McCutcheon confirmed that she reviewed 

petitioner’s medical records prior to her deposition and found nothing she felt was 

incomplete or inaccurate. (Id. at 34.) Dr. McCutcheon explained that the “review of 

systems” section is completed by patient “bubble sheet” questionnaire7 and the “chief 

complaint” section of the record is completed by a nurse, but that she herself completes 

the “history of present illness” with the patient. (Id. at 8-10, 40-41.)

Dr. McCutcheon explained that her usual practice is to record her notes into the 

electronic system in real-time while the patient is speaking. (Id. at 10-11.) Notes from 

prior visits may be copied and pasted when there are ongoing complaints; however, 

these notes are updated during the visit. (Id. at 9-10.) If a follow up procedure is 

indicated, the chart may not be closed until the end of the day, but typically Dr. 

McCutcheon finishes her notes and closes each patient’s chart before moving on to her 

next patient. (Id. at 10.) Based on the time stamps of the electronic signatures for the 

records of petitioner’s September 21 and November 30, 2016 encounters, Dr. 

7 In fact, there was an earlier period during which the review of systems was completed by Dr. 

McCutcheon with the patient. (Id. at 42-43.) Dr. McCutcheon was “pretty sure” the questionnaire was in 

use by September 21, 2016. (Id.) Once the sheet is scanned and the review of systems populated within 

the computer, Dr. McCutcheon believes the paper sheets are not retained. (Id. at 56-58.)
8

McCutcheon testified that she likely completed her notations and closed petitioner’s 

chart at the time of petitioner’s appointment and before moving to the next patient. (Id. 

at 47-48, 51-52.)

During the deposition, petitioner’s counsel sought to press Dr. McCutcheon 

regarding the frequency with which she is alerted to mistakes in her patient files. (Id. at

11-15.) According to Dr. McCutcheon, in her 25 years of practice there have been two 

or three instances in which a stray diagnosis has been found to have been erroneously

included in a patient’s file.8 (Id. at 13.) Dr. McCutcheon testified that she checks her 

record after every visit to make sure it is accurate. (Id. at 26.) 

With regard to petitioner’s September 21, 2016 appointment, Dr. McCutcheon 

confirmed that she does not have any reason to believe the record of that encounter is 

not complete and accurate. (Id. at 37.) Dr. McCutcheon confirmed that the history of

present illness is related to hypertension and neuralgia. (Id.) She also indicated, 

however, that her routine practice in taking a history of illness is to ask whether there 

has been any change in the patient’s condition and whether there are any new 

complaints. (Id. at 39.) Dr. McCutcheon testified that she has no reason to believe she 

did not ask her routine questions at petitioner’s September 21, 2016, and that she 

believes if petitioner had reported shoulder pain at that appointment, she would have 

recorded it. (Id. at 39-40.)

With regard to petitioner’s November 30, 2016 appointment, Dr. McCutcheon 

testified that she has no reason to believe the record of this encounter is not complete 

and accurate. (Id. at 50.) Dr. McCutcheon indicates that petitioner told her at that visit 

that her left shoulder pain had started “a couple weeks prior to [--] after she had 

received a flu shot on September of 2016.” (Id. at 25.) Petitioner’s counsel further 

probed whether Dr. McCutcheon believed the onset could have been misreported. Dr. 

McCutcheon responded: “I don’t think so. I can tell you what I [am] reading from my 

notes is that she had a problem with bursitis with her shoulder but in her mind there was 

some connection between that and the flu shot but I found no evidence of that.” (Id. at 

30.)

Significantly, Dr. McCutcheon testified that she is “absolutely” aware that a flu 

shot can cause bursitis. (Id. at 30.) However, Dr. McCutcheon felt the timeline petitioner 

described – “a couple of weeks after receiving the flu shot” - was not consistent with her 

8 Asked specifically if she had ever misrecorded anything in her records, Dr. McCutcheon testified “I don’t 

think I have.” (Id. at 14.) During follow up questioning, petitioner’s counsel adopted a tone of incredulity, 

ultimately asking Dr. McCutcheon “[s]o in 25 years when you’re recording a patient’s medical history and 

their complaints to you you’re recording it with 100 percent accuracy? Is that what you’re telling me?” (Id. 

at 14-15.) Dr. McCutcheon’s consistent answer was that apart from the two or three instances she had 

previously referenced, she was not aware of having made such mistakes. (Id. at 14-15.) This is not the

same as asserting 100% accuracy. Dr. McCutcheon acknowledged that she “is not perfect” and that 

mistakes are possible. (Id. at 26.) On the whole Dr. McCutcheon was a credible witness insofar as she is 

disinterested in the outcome of this case and limited her testimony to what she could recall or what she 

could ascertain from her records. (E.g. Id. at 20.) Notably, however, discussing her own errors in her 

medical records is likely a more sensitive topic for a physician and Dr. McCutcheon’s disinterest does not 

necessarily extend to questions regarding her own fallibility. Nonetheless, she has no apparent motive to 

either favor or defeat petitioner’s claim.
9

vaccine being the cause. (Id. at 30.) Asked if the specific notation regarding onset was 

mistaken, Dr. McCutcheon agreed that “I’m not perfect, so, of course, that’s possible,” 

but was clear in testifying that she did not believe this notation was a mistake. (Id. at 

31.) Dr. McCutcheon also confirmed that her examination indicated pain over the 

acromioclavicular joint but did not reveal any tenderness in the deltoid muscle. (Id. at 

49-50.) X-rays ordered in connection with that encounter showed mild degenerative 

changes (Id.) These factors contributed to her diagnosis of osteoarthritis of the left 

shoulder. (Id.)

III. Standard of Adjudication

The process for making determinations in Vaccine Program cases regarding 

factual issues begins with consideration of the medical records. § 300aa-11(c)(2). 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 then required to weigh the evidence presented, including contemporaneous 

medical records and testimony. See Burns v. Sec'y of Health & Human Servs., 3 F.3d 

415, 417 (Fed. Cir. 1993) (it is within the special master's discretion to determine 

whether to afford greater weight to contemporaneous medical records than to other 

evidence, such as oral testimony surrounding the events in question that was given at a 

later date, provided that such a determination is evidenced by a rational determination).

Petitioner must prove by a preponderance of the evidence the factual circumstances 

surrounding her claim. § 300aa–13(a)(1)(A). 

Medical records that are created contemporaneously with the events they 

describe are presumed to be accurate and “complete” (i.e., presenting all relevant 

information on a patient's health problems). Cucuras, 993 F.2d at 1528; Doe v. Sec'y of 

Health & Human Servs., 95 Fed.Cl. 598, 608 (2010) ( “[g]iven the inconsistencies 

between petitioner's testimony and his contemporaneous medical records, the special 

master's decision to rely on petitioner's medical records was rational and consistent with 

applicable law”), aff'd, Rickett v. Sec'y of Health & Human Servs., 468 Fed.Appx. 952 

(Fed. Cir. 2011) (non-precedential opinion). This presumption is based on the linked 

propositions that (i) sick people visit medical professionals; (ii) sick people honestly 

report their health problems to those professionals; and (iii) medical professionals 

record what they are told or observe when examining their patients in as accurate a 

manner as possible, so that they are aware of enough relevant facts to make 

appropriate treatment decisions. Sanchez v. Sec'y of Health & Human Servs., No. 11–

685V, 2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr. Apr. 10, 2013); Cucuras v. Sec'y of 

Health & Human Servs., 26 Cl.Ct. 537, 543 (1992), aff'd, 993 F.2d 1525 (Fed. Cir. 1993) 

(“[i]t strains reason to conclude that petitioners would fail to accurately report the onset 

of their daughter's symptoms. It is equally unlikely that pediatric neurologists, who are 

trained in taking medical histories concerning the onset of neurologically significant 
10

symptoms, would consistently but erroneously report the onset of seizures a week after 

they in fact occurred”).

Accordingly, if the medical records are clear, consistent, and complete, then they 

should be afforded substantial weight. Lowrie v. Sec'y of Health & Human Servs., No. 

03–1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, 

contemporaneous medical records are generally found to be deserving of greater 

evidentiary weight than oral testimony—especially where such testimony conflicts with 

the record evidence. Cucuras, 993 F.2d at 1528; see also Murphy v. Sec'y of Health & 

Human Servs., 23 Cl.Ct. 726, 733 (1991), aff'd, 968 F.2d 1226 (Fed. Cir.), cert. den'd, 

Murphy v. Sullivan, 506 U.S. 974, 113 S.Ct. 463, 121 L.Ed.2d 371 (1992) (citing United 

States v. United States Gypsum Co., 333 U.S. 364, 396, 68 S.Ct. 525, 92 L.Ed. 746 

(1948) (“[i]t has generally been held that oral testimony which is in conflict with 

contemporaneous documents is entitled to little evidentiary weight.”)). However, there 

are situations in which compelling oral testimony may be more persuasive than written 

records, such as where records are deemed to be incomplete or inaccurate. Campbell 

v. Sec'y of Health & Human Servs., 69 Fed.Cl. 775, 779 (2006) (“like any norm based 

upon common sense and experience, this rule should not be treated as an absolute and 

must yield where the factual predicates for its application are weak or lacking”); Lowrie, 

2005 WL 6117475, at *19 (“[w]ritten records which are, themselves, inconsistent, should 

be accorded less deference than those which are internally consistent”) (quoting

Murphy, 23 Cl.Ct. at 733). 

When witness testimony is offered to overcome the presumption of accuracy 

afforded to contemporaneous medical records, such testimony must be “consistent, 

clear, cogent, and compelling.” Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v. 

Sec'y of Health & Human Servs., No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. 

Mstr. June 30, 1998)). In determining the accuracy and completeness of medical 

records, the Court of Federal Claims has listed four possible explanations for 

inconsistencies between contemporaneously created medical records and later 

testimony: (1) a person's failure to recount to the medical professional everything that 

happened during the relevant time period; (2) the medical professional's failure to 

document everything reported to her or him; (3) a person's faulty recollection of the 

events when presenting testimony; or (4) a person's purposeful recounting of symptoms 

that did not exist. La Londe v. Sec'y Health & Human Servs., 110 Fed.Cl. 184, 203–04 

(2013), aff'd, 746 F.3d 1334 (Fed. Cir. 2014). In making a determination regarding 

whether to afford greater weight to contemporaneous medical records or other 

evidence, such as testimony at hearing, there must be evidence that this decision was 

the result of a rational determination. Burns, 3 F.3d at 417.

The specific issue of determining the onset of symptoms in a SIRVA case has 

arisen repeatedly. Important to that point, the Vaccine Act instructs that the special 

master may find the time period for the first symptom or manifestation of onset required 

for a Table Injury is satisfied “even though the occurrence of such symptom or 

manifestation was not recorded or was incorrectly recorded as having occurred outside 
11

such a period.” §300aa-13(b)(2). However, consistent with petitioner’s burden of proof 

overall, that finding must be supported by preponderant evidence. Id. 

In that regard, prior decisions by myself and other Special Masters have found 

that postponing treatment for a limited number of months is not per se dispositive of 

whether onset of shoulder pain occurred within the specified time period for a SIRVA.

Nor is the fact of an intervening medical appointment at which symptoms are not 

discussed. See e.g., Forman-Franco v. Sec’y of Health & Human Servs., No. 15-1479V, 

2018 WL 1835203 (Fed. Cl. Spec. Mstr. Feb. 21, 2018); Tenneson v. Sec’y of Health & 

Human Servs., No. 16-1664V, 2018 WL 3083140 (Fed Cl. Spec. Mstr. Mar. 30, 2018), 

mot. rev. denied 142 Fed. Cl. 329 (2019); and Gurney v. Sec’y of Health & Human 

Servs., No. 17-481V, 2019 WL 2298790 (Fed. Cl. Spec. Mstr. Mar. 19, 2019). For 

example, in Williams v. Secretary of Health & Human Services, I found that the 

petitioner had established onset within 48 hours even though he had delayed treatment 

for his shoulder injury by roughly three to five months and his records suggested he 

may not have discussed his shoulder pain at the first available opportunity. No. 17-

1046V, 2020 WL 3579763, at *2 (Fed. Cl. Spec. Mstr. Apr. 1, 2020). 

However, delays in seeking treatment and intervening appointments have 

contributed to findings against SIRVA claims when the contemporaneous medical 

records are inconsistent with petitioner’s allegation of immediate post-vaccination onset

rather than merely silent. See e.g., Small v. Sec’y of Health & Human Servs., No. 15-

478V, 2019 WL 6463985, at *11-*12 (Fed. Cl. Spec. Mstr. Nov. 1, 2019); Demitor v. 

Sec’y of Health & Human Servs., No. 17-564V, 2019 WL 5688822, at *10 (Fed. Cl. 

Spec. Mstr. Oct. 9, 2019). In fact, key medical records indicating an onset of shoulder 

pain inconsistent with petitioner’s allegations can carry substantial weight. For example, 

in Demitor, petitioner first presented for treatment of her shoulder pain approximately six 

months after her vaccination and at that time completed a patient intake form that 

placed onset of her injury just one month prior. In later medical records, petitioner 

associated her injury to her vaccination, but neither these later records nor petitioner’s 

testimony could overcome the weight of her initial treatment records.

IV. Discussion

In this case, petitioner’s most contemporaneous medical records not only fail to 

explicitly support her allegation of immediate onset, they are inconsistent with her claim. 

Contrary to the allegation in the petition, on November 30, 2016, when petitioner first 

sought treatment for her shoulder pain, Dr. McCutcheon recorded by petitioner’s 

account that “left shoulder started hurting a couple weeks after she received the flu shot 

on 9/16/16.” (Ex. 2, p. 18.) Consistent with that report, on September 21, 2016, 

approximately five days after her influenza vaccination, petitioner had reported to Dr. 

McCutcheon for a regular six month follow up and did not report any shoulder pain. (Id. 

at 20-22.) At that time musculoskeletal exam focused only on her knees. (Id. at 21.) 

Upon referral to an orthopedist on December 14, 2016, petitioner reportedly indicated 

that her shoulder pain was of “gradual” onset and did not associate the pain to her 

vaccination. (Ex. 3, p. 2.) It was only about one year later, on November 24, 2017, that 

petitioner filled out a questionnaire for a physical therapy evaluation and described her 

shoulder pain as beginning on the date of vaccination. (Ex. 4, p. 6.) Accordingly, the 
12

most contemporaneous medical records from multiple providers reflect, without 

contradiction, a gradual onset of left shoulder pain occurring about two weeks after 

petitioner’s September 16, 2016 flu vaccination. 

Notably, the affidavits petitioner has filed also confirm key aspects of the history 

reflected in the medical records. Petitioner acknowledges in her own affidavit that she 

did not report any shoulder pain at her September 21, 2016 encounter with Dr. 

McCutcheon occurring five days post-vaccination. (Ex. 10, p. 2.) Additionally, the 

statements by petitioner and the three witnesses also confirm on the whole that 

petitioner did not mention any shoulder pain to anyone else until at least one week after 

her vaccination. (Exs. 9, 11, 13.) Moreover, none of the three witness statements 

specifically confirm an immediate onset of overall shoulder pain, though both Ms. Ellis 

and Ms. Palmer suggested the injection itself may have been painful. (Id.) (Petitioner 

likewise distinguishes between localized injection site pain, which she suggests was 

immediate, and overall shoulder pain, which she describes as developing “a few days 

later.” (Ex.10, p. 2.)) Further, although she could not recall using the term at the time, 

petitioner confirms by the description in her affidavit that she experienced a “gradual” 

worsening of her pain, consistent with her initial orthopedic record.9 (Ex. 10, p. 3.) 

Turning to the key November 30, 2016 record, petitioner has entirely failed to 

establish any basis for doubting the accuracy of that record based on the affidavit 

testimony, the record itself, or Dr. McCutcheon’s testimony. Importantly, this is informed 

by several factors and is not limited simply to Dr. McCutcheon’s denial of having made 

any mistake. First, there is no pattern of error or omission facially evident in Dr. 

McCutcheon’s records generally or the November 30, 2016 record particularly. (Ex. 2, 

pp. 18-19) In fact, the two-week post vaccination onset recorded by Dr. McCutcheon is 

corroborated by the radiology report of the same date that similarly estimates a twomonth duration of symptoms. (Ex. 2, p. 43.) These two separate notations are 

consistent in their placement of onset. Relatedly, Dr. McCutcheon’s testimony also 

reveals that her routine practice is consistent with accurate note taking. In particular, 

she explained that her habit and practice is to record her notes immediately and this is 

verified by the time stamp on the records themselves. (Ex. 14, pp. 10, 47-48, 51-52.) 

She also specifically testified that she rechecks her notes prior to closing each chart. 

(Id. at 26.) 

Moreover, Dr. McCutcheon’s records and testimony demonstrate that she was 

not a mere stenographer. Rather, she testified that she considered petitioner’s belief 

that her vaccine was the cause of her shoulder pain and reached a reasoned judgment 

that petitioner’s condition was not vaccine-related based on the history provided by 

petitioner, her own physical exam, and x-ray imaging. (Id. at 30, 49-50.) Also 

significant, petitioner’s basis for assigning error to Dr. McCutcheon’s record is her belief 

9 Specifically, petitioner indicated that “[t]he pain started at the injection site when I was vaccinated, it 

continued and worsened and I could feel pain in the whole left shoulder area a few days later, maybe 

over 3 days and it continued to increase. The onset was not gradual, it was sudden and started 

immediately when I was vaccinated, but the pain increased and worsened gradually over time – mostly 

over the first 3 to 6 days.” (Ex. 10, p. 3 (emphasis added).)
13

that Dr. McCutcheon did not accept that it is possible for vaccines to cause bursitis

generally (Ex. 10, p. 2); however, that belief is refuted by Dr. McCutcheon’s testimony.

Dr. McCutcheon confirmed that she is of the opinion that vaccines can cause bursitis. 

(Ex. 14, p. 30.) To the extent there is a credibility determination to be made, Dr. 

McCutcheon is a disinterested witness on the whole (see n. 8, supra) and her testimony 

is supported by contemporaneous documentation. 

Petitioner argues that Dr. McCutcheon’s November 30, 2016 notation of a twoweek post vaccination onset is effectively an outlier “corroborated by nothing else in the 

record.” (ECF No. 34, p. 5.) Further, petitioner relies on Gentile v. Secretary of Health 

and Human Services for the proposition that petitioner testimony in harmony with 

medical record evidence is sufficient to find an immediate onset. (Id. at 3-4 (citing No. 

16-908V, 2018 WL 6540025 (Fed. Cl. Spec. Mstr. Oct. 29, 2018).) These arguments 

are without merit. In Gentile, the petitioner consistently reported to her physicians that 

her injury began at the time of her vaccination and the sole issue was her delay in 

seeking treatment. 2018 WL 6540025, at *5-7. Here, petitioner’s initial treatment 

records reflect a later onset than she alleges. Petitioner stresses that the physical 

therapy intake form she completed corroborates an immediate onset (Ex. 4, p. 6); 

however, that record is a full year removed from her initial treatment and deserving of 

less weight given that it conflicts with the earlier medical records. See, e.g. Vergara v. 

Sec’y of Health & Human Servs., 08-882V, 2014 WL 2795491, *4 (Fed. Cl. Spec. Mstr 

May 15, 2014) (“Special Masters frequently accord more weight to contemporaneouslyrecorded medical symptoms than those recorded in later medical histories, affidavits, or 

trial testimony”(emphasis added).). Moreover, contrary to petitioner’s assertion, the 

specific notation at issue is corroborated by Dr. McCutcheon’s testimony as well as the 

other contemporaneous treatment records, including petitioner’s September 21, 2016 

appointment, the radiologist’s report, and Dr. Blair’s records, all of which, though they 

do not repeat the exact notation, are consistent with that notation.10 

Petitioner also argues that her allegation of immediate onset is corroborated by 

the affidavit of Ms. Phipps. (ECF No. 34, p. 5.) This too is not entirely correct. Ms. 

Phipps could not recall with specificity when she spoke with petitioner about her 

shoulder pain and did not reference any immediate post-vaccination onset. (Ex. 9.) 

Moreover, to the extent Ms. Phipps indicated this discussion occurred a “few days” after 

the vaccination, it is contradicted by petitioner’s own account. Petitioner averred that 

she did not speak to anyone about her shoulder pain until at least one-week post10 In the interest of completeness, I note that there are two later references to the duration of petitioner’s 

shoulder pain in the medical records that are inconsistent with the onset recorded by Dr. McCutcheon. 

Specifically, on March 9, 2017, petitioner’s shoulder pain was noted to have been present for over six 

months. (Ex. 3, p. 6.) On November 24, 2017, petitioner’s pain was noted to have been present for one 

year. (Ex. 4, p. 11.) Upon my review, these notations do not appear to suggest any degree of precision 

and do not add significantly to the analysis. Importantly, however, if accepted as accurate these notations 

would likewise be inconsistent with petitioner’s allegation of immediate post-vaccination shoulder pain. 

The former places onset prior to vaccination while the latter places onset two months after vaccination. 

That the medical records contain further inconsistency in petitioner’s report of onset would not enhance 

her claim.
14

vaccination. (Ex. 10, p. 2.) Additionally, Ms. Ellis similarly averred that she first spoke 

with petitioner about her shoulder pain one-week post-vaccination despite seeing her 3-

4 times per week during the relevant period. (Ex. 13.) Moreover, the affidavits focus on 

when petitioner spoke about her shoulder pain rather than whether the pain was 

immediate. At best, the witness affidavits can be harmonized to support the presence of 

shoulder pain occurring one-week post-vaccination, earlier than what was recorded by 

Dr. McCutcheon, but still not confirmation of the alleged immediate onset. In short, the 

recollections contained in these affidavits are not “consistent, clear, cogent, and 

compelling.” Sanchez, 2013 WL 1880825, at *3. Even without questioning the 

truthfulness of these witness recollections, it remains the case that petitioner’s report to 

Dr. McCutcheon of a two-week onset, which I find little to no reason to doubt was 

accurately recorded, remains the freshest available recollection of the onset of 

petitioner’s shoulder pain and for all the reasons discussed above remains the most 

reliable account.

Finally, I do give some weight to petitioner’s explanation for why she may not 

have been inclined to report shoulder pain during the week following her vaccination, 

i.e. that patients are routinely told that some post-vaccination pain is to be expected. In 

that regard, the fact that petitioner did not report shoulder pain at her September 21, 

2016 medical appointment would not standing alone be likely to defeat her claim. 

However, the fact that the September 21 record is silent on the matter is not the sole or 

even primary issue in this case. When viewed as a whole, the contemporaneous 

medical records, including the September 21 record, weigh against petitioner’s 

narrative.

V. Conclusion

In light of the above, there is not preponderant evidence that petitioner 

experienced left shoulder pain within 48 hours of her September 16, 2016 flu 

vaccination. Rather, the evidence preponderates in favor of a finding that petitioner 

experienced a gradual onset of left shoulder pain beginning at the earliest two weeks 

after her September 16, 2016 flu vaccination.

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master