ANNE ZARATSIAN,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

Respondent.

Chief Special Master Corcoran 

Filed: August 23, 2022

Special Processing Unit (SPU);

Findings of Fact; Site of Vaccination

Tetanus, Diphtheria, acellular 

Pertussis (Tdap) Vaccine; Shoulder 

Injury Related to Vaccine 

Administration (SIRVA)

Howard Dale Mishkind, Mishkind Kulwicki Law Co., L.P.A., Cleveland, OH, for 

Petitioner.

Rachelle Bishop, U.S. Department of Justice, Washington, DC, for Respondent.

FINDINGS OF FACT1

On April 19, 2021, Anne Zaratsian 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 she suffered a left shoulder injury related to vaccine 

administration (“SIRVA”), as defined in the Vaccine Table, after receiving the tetanus, 

diphtheria, acellular pertussis (“Tdap”) vaccine on September 9, 2020. Petition at 1, ¶¶ 2, 

4, 12. 

1 Because this unpublished Fact Ruling contains a reasoned explanation for the action in this case, I am 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 EGovernment Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic 

Government Services). This means the Fact 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).

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS 

No. 21-1251V 

UNPUBLISHED 
2

For the reasons discussed below, I find the Tdap vaccine was most likely 

administered in Petitioner’s left deltoid, as alleged.

I. Relevant Procedural History

Not long after the case’s initiation, Ms. Zaratsian filed the affidavit and medical 

records required under the Vaccine Act to support her claim. Exhibits 1-3, ECF Nos. 1, 7; 

see Section 11(c). On October 15, 2021, the case was activated and assigned to the 

Special Processing Unit (OSM’s process for attempting to resolve certain, likely-to-settle 

claims (the “SPU”)). ECF No. 11.

On December 6, 2021, Petitioner was ordered to file any additional records 

indicating the site of vaccination – information which was lacking on the filed vaccine 

record. ECF No. 14. In response, Petitioner provided a letter from her primary care 

provider, dated on December 22, 2021, indicating that Petitioner received the Tdap 

vaccine intramuscularly in her left deltoid on September 9, 2020. Exhibit 4, filed Dec. 27, 

2021, ECF No. 17. After Respondent’s counsel questioned the sufficiency of this letter, 

Petitioner provided a second letter, containing a more detailed accounting of the facts 

surrounding the vaccination. Exhibit 5, filed May 22, 2022, ECF No. 21 (letter dated May 

19, 2022). 

In response to an email communication from the OSM staff attorney assisting me 

on this SPU case, the parties confirmed that they did not wish to add any further evidence 

or briefing regarding the situs issue. See Informal Remark, dated Aug. 8, 2022. The matter 

is now ripe for adjudication. 

II. Issue

At issue is whether Petitioner received the vaccination alleged as causal in her

injured left deltoid, as alleged. 

III. Authority

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). 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 
3

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, this rule 

does not always apply. “Written records which are, themselves, inconsistent, should be 

accorded less deference than those which are internally consistent.” Murphy v. Sec’y of 

Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25, 

1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd 

per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as 

incorrect the presumption that medical records are accurate and complete as to all the 

patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 

1383 (Fed. Cir. 2021). 

 The United States Court of Federal Claims has outlined 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 of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013), 

aff’d, 746 F.3d 1335 (Fed. Cir. 2014). 

The Court has also said that 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 fact 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 
4

IV. Finding of Fact

I make these findings after a complete review of the record, which includes all 

medical records, affidavits, and additional evidence filed. Specifically, I highlight the

following:

• Prior to vaccination, Petitioner suffered from common illnesses and

conditions. Exhibit 2 at 6-213. In 2020, Petitioner was also being seen

routinely by medical treaters because she was pregnant with her third child.

Id. at 68 (listing two prior births).

• While still pregnant on September 9, 2020, Petitioner received the Tdap

vaccine alleged as causal. Exhibit 2 at 214, 226. The vaccine record

provides the date, type, lot number, and method of administration

(intramuscularly) of vaccination and individual administering it. The record

does not identify the site of vaccination. Id.

• Approximately two weeks post-vaccination on September 21st, Petitioner

called her primary care provider (“PCP”), complaining of shoulder pain after

receiving the Tdap vaccine on September 9th. Exhibit 2 at 232. She

indicated that her pain began “that same day and . . . has not subsided.” Id.

The location of Petitioner’s pain was listed as the “injection site.” Id. at 234;

accord. id. at 236. Petitioner indicated that when she received vaccination,

“the nurse stuck her twice because the first time was too high/needle wasn’t

working.” Id. at 236. She requested a referral for treatment of this injury. Id.

at 232.

• The next day on September 22nd, Petitioner was seen by her PCP for pain

at the injection site of her left arm/shoulder. Exhibit 2 at 239. Reporting the

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, 110 Fed. Cl. at 204 (citing Section 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 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). 
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same account of being stuck twice, Petitioner added that the nurse 

administering the vaccine was shaky and injected the vaccine “near [the] 

top of [the] shoulder joint.” Id. Petitioner was assessed as having acute pain 

of the left shoulder and pain at the injection site. Id. at 240. After checking 

with her obstetrician, Petitioner was prescribed a Medrol dose pack. Id. at 

246. 

• At her prenatal visit the next day on September 23rd, Petitioner reported arm

soreness from the Tdap vaccine she received two weeks earlier. Exhibit at

256.

• An ultrasound of Petitioner’s left shoulder was performed on September

23rd. Exhibit 2 at 265-67. Despite normal results, the nurse practitioner

reviewing the ultrasound opined Petitioner was suffering from an injury

caused form of tendinitis, rather than any chronic issues. Id. at 269.

Petitioner was instructed to take the oral steroids prescribed byher PCP the

previous day. Id. at 270.

• The next day on September 24

th, Petitioner remotely attended an

appointment with the nurse practitioner. Exhibit 2 at 272. Her left shoulder

pain was again attributed to her Tdap vaccination, and the same detailed

history of the administration – including two attempts and a too-high

injection, was included in this record. Id.

• On September 25th, Petitioner was seen by an orthopedist for “left shoulder

pain after receiving a TD vaccine.” Exhibit 2 at 281. She again reported

achiness which began with her Tdap vaccine and progressively worsened

thereafter. Id. at 279. She received a second cortisone injection. Id. at 281,

284-87.

• Petitioner reported that her left shoulder pain was gradually improving

during a remote appointment on September 30, 2020. Exhibit 2 at 291

• A few days after giving birth on October 30, 2020, Petitioner inquired by

phone, for additional treatment of her shoulder pain. Exhibit 2 at 570 (call

on November 6, 2020. She indicated that the second cortisone injection was

wearing off, and she did not want to wait too long before pursuing additional

treatment. Id.
6

• On December 2nd, Petitioner participated in a remote orthopedic

appointment for her left shoulder pain. Exhibit 2 at 617. The next day, she

attended a physical therapy evaluation. Exhibit 3 at 36. Petitioner continued

PT through mid-April 2021. Exhibit 3 at 4 (last PT session on April 14th).

• In her affidavit, executed on April 17, 2021, Petitioner indicated that she

received the Tdap vaccine in her left deltoid on September 9, 2020, when

visiting her obstetrician. Exhibit 1 at ¶ 3.

The above medical entries show that, when seeking treatment for her left shoulder 

pain, Petitioner consistently attributed her pain to the Tdap vaccine she reported receiving 

in her left arm. She provided these histories to her PCP, obstetrician, and orthopedist. 

While originating from Petitioner, these statements are memorialized in 

contemporaneous records, and should therefore be afforded greater weight than any 

subsequent assertion or witness statement. The Federal Circuit has stated that “[m]edical 

records, in general, warrant consideration as trustworthy evidence . . . [as they] contain 

information supplied to or by health professionals to facilitate diagnosis and treatment of 

medical conditions.” Cucuras, 993 F.2d at 1528 (emphasis added). Thus, and even 

though the record in question simply memorializes what the petitioner said at the time, its 

contemporaneous nature makes it somewhat more trustworthy than after-the-fact witness 

statements prepared in connection with this matter.

The vaccine record clearly establishes that Petitioner received a Tdap vaccine on 

September 9, 2020. Thereafter, when seeking medical care for her left shoulder pain, 

Petitioner consistently attributed the source of her pain to the Tdap vaccine she described

as improperly administered in her left deltoid. There is a dearth of evidence that the 

vaccine was administered in any other location. I thus determine, based on the record as 

a whole, that preponderant evidence establishes that the Tdap vaccine to which Petitioner 

attributes her SIRVA was most likely administered in her left deltoid on September 9, 

2020.

V. Scheduling Order

I expect the HHS review in this case to be completed in late 2022. While awaiting 

the review, Petitioner should finalize a demand and should convey the demand, along 

with any supporting documentation, to Respondent. 

Petitioner shall file any updated medical records and a status report 

regarding her demand, supporting documentation, and current condition by no 

later than Wednesday, September 28, 2022.
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s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

Respondent shall file a status report providing his tentative position 

regarding the merits of Petitioner’s claim or, at a minimum, an updated estimate of 

the timing of the HHS review and assessment of the completeness of the 

supporting documentation for any conveyed demand by no later than Friday, 

October 28, 2022. 

IT IS SO ORDERED.