In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 18-0226V 

Filed: June 7, 2019

UNPUBLISHED

KIMBERLY RAYBORN,

 Petitioner,

v.

SECRETARY OF HEALTH 

AND HUMAN SERVICES,

 Respondent.

Special Processing Unit (SPU); 

Findings of Fact; Onset; Influenza 

(Flu) Vaccine; Shoulder Injury 

Related to Vaccine Administration 

(SIRVA)

Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.

Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.

FACT RULING AND SCHEDULING ORDER – SPECIAL PROCESSING UNIT1

Dorsey, Chief Special Master:

On February 14, 2018, Kimberly Rayborn (“petitioner”) filed a petition for 

compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. 

§300aa-10, et seq.,

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(the “Vaccine Act” or “the Act”). Petitioner alleges that she 

suffered a left shoulder injury related to vaccine administration (“SIRVA”) as a result of 

an influenza (“flu”) vaccine she received on September 21, 2016. Petition at 1. The 

case was assigned to the Special Processing Unit of the Office of Special Masters. 

 

1 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. 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, the undersigned 

agrees that the identified material fits within this definition, the undersigned will redact such material from 

public access. Because this published ruling contains a reasoned explanation for the action in this case, 

undersigned is 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).

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for 

ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 

300aa (2012).
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Petitioner now moves for a ruling on the record making a finding of fact that the 

onset of petitioner’s shoulder injury was within 48 hours of receiving the flu vaccination. 

ECF No. 25, Petitioner’s Motion for a Fact Ruling on the Issue of Onset (“Motion”). For 

the reasons discussed below, the undersigned grants petitioner’s Motion and finds that 

the onset of petitioner’s shoulder injury was within 48 hours of her September 21, 2016 

flu vaccination. 

I. Procedural History

On February 14, 2018, in addition to the petition, petitioner filed medical records 

as Exhibits 1-3 and an affidavit as Exhibit 4. (ECF No. 1). On February 20, 2018, 

petitioner filed the vaccine administration record as Exhibit 5 and, on February 26, 2018,

filed a statement of completion. (ECF Nos. 6, 8). Immediately following the March 20, 

2018 initial status conference, petitioner filed additional medical records as Exhibits 6

and 7. (ECF No. 10). On April 10, 2018, petitioner filed an amended petition in which 

the date of vaccination was corrected. (ECF No. 11). Petitioner’s second affidavit and a 

more detailed record of vaccine administration were filed on April 13 and April 23, 2018 

as Exhibits 8 and 9. (ECF Nos. 13, 14). 

On November 14, 2018, respondent filed the Rule 4(c) Report asserting that 

petitioner had not demonstrated entitlement to compensation. Respondent’s Report

(ECF No. 23). Specifically, respondent argued that the record is insufficient to 

substantiate that the onset of petitioner’s left shoulder symptoms began within fortyeight hours of vaccination because “petitioner did not seek care for her alleged injury 

until . . . almost four months after the vaccination.” Id. at 3. 

On November 20, 2018, the undersigned ordered petitioner to file a detailed 

affidavit and Motion for a Ruling on the Record regarding onset. See Scheduling Order 

at 1 (ECF No. 24). Petitioner filed her Motion on January 14, 2019 without an affidavit. 

(ECF No. 25). Respondent filed his response on March 5, 2019. (ECF No. 26). Thus, 

petitioner’s Motion is now ripe for adjudication. 

II. Relevant Factual History

On September 21, 2016, petitioner received a flu vaccination in her left arm. Ex.

9. Petitioner’s medical history does not appear to be contributory to her claim in this 

case. See generally Ex. 7 at 34-35 (listing petitioner’s past medical history and “active 

problems.”). 

Approximately 4 months later, on January 18, 2017, petitioner first presented to 

Nurse Practitioner (“NP”) Anne Musgrove at Memorial Southern Coast Family Medicine 

with complaints of left shoulder pain. Ex. 3 at 4. According to the clinical record, 

petitioner’s pain “began in September on the evening she received her flu vaccine at 

work.” Id. It is noted that petitioner initially attempted to treat her shoulder with 

nonsteroidal anti-inflammatory drugs (“NSAIDs”) and sought to alleviate pain through 

the strategic placement of pillows during the night and limiting weight-bearing activities. 

Id. Despite these measures, petitioner’s shoulder pain continued. Id. It was also noted 
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that “abduction of the left arm is limited to approximately 85 [degrees] actively and 94 

[degrees] passively. There is some weakness in her left hand, sometimes losing her 

grip strength.” Id. The clinical notes reflect “constant 2/10 dull aching with episodes of 

6/10 pain with abduction of L[eft] arm.” Id. NP Musgrove diagnosed petitioner with a 

vaccine reaction and referred her for magnetic resonance imaging (“MRI”). Id. at 5. 

On January 22, 2017, petitioner underwent an MRI of her left shoulder. Id. at 1-

2. The MRI report notes petitioner’s “[l]imited range of motion of the shoulder since the 

fluid [sic] shot.” Id. at 1. The MRI revealed “some mild thickening of the joint capsule at 

the axillary recess which can be seen with adhesive capsulitis.” Id. at 2. 

On February 2, 2017, petitioner presented to Dr. Arthur D. Black, an orthopedist. 

Ex. 6 at 1-2. Petitioner reported left shoulder pain “that started approximately 4 months 

ago after receiving a flu shot in the same shoulder.” Id. at 1. Petitioner further reported 

having had “some relief [of] some of the symptoms with activity modification and antiinflammatories however they have not completely resolved.” Id. Petitioner was 

assessed with “left shoulder bursitis, slow to resolve,” and was given a cortisone 

injection. Id. at 2. 

Petitioner returned to Dr. Black on March 21, 2017 to follow-up on her left 

shoulder pain. Id. at 3-4. The clinical notes indicate that while the previously 

administered cortisone injection had initially provided pain relief, petitioner’s symptoms

were beginning to return. Id. at 3. Petitioner was assessed with having left shoulder 

impingement symptoms and petitioner was prescribed physical therapy. Id. at 4. 

On April 21, 2017, petition completed a Vaccine Adverse Event Reporting 

System form (“VAERS Report”) indicating “left shoulder pain onset [illegible] injection.” 

Ex. 1 at 2. The date of onset is listed as September 21, 2016. Id. 

Petitioner participated in 13 sessions of occupational therapy from March 30, 

2017 through June 20, 2017. Ex. 2 at 40-68. The outpatient evaluation note states that 

petitioner “has a history of approximately 6 months of left shoulder pain.” Id. at 68. 

In petitioner’s second affidavit, petitioner states that she began experiencing left 

shoulder pain following her September 21, 2016 flu shot. Ex. 8 at ¶ 3. Petitioner 

explains that, “[i]n the past with vaccination, I had often experienced some mild 

soreness typically resolving within a few days.” Id. Petitioner explained that, unlike the 

soreness she experienced following previous vaccinations, the pain that followed her 

September 21, 2016 vaccination persisted. Id. Petitioner noted that as “a nurse 

practitioner and busy mom I continued to just treat supportively. Once I began having 

limited range of motion as well as continued pain, I knew there was something more 

wrong.” Id. 

III. Discussion

a. Applicable Legal Standard
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Effective for petitions filed beginning on March 21, 2017, SIRVA is an injury listed 

on the Vaccine Injury Table (“Table”). See Vaccine Injury Table: Qualifications and aids 

to interpretation. 42 C.F.R. § 100.3(c)(10). Therefore, the undersigned’s findings are

informed by the Qualifications and Aids to Interpretation for SIRVA criteria used to 

evaluate such claims. The criteria are as follows:

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 timeframe; (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). 

Id.; see also National Vaccine Injury Compensation Program: Revisions to the Vaccine 

Injury Table, 80 Fed. Reg. 45132, Notice of Proposed Rulemaking, July 29, 2015 (citing 

Atanasoff S, Ryan T, Lightfoot R, and Johann-Liang R, 2010, Shoulder injury related to 

vaccine administration (SIRVA), Vaccine 28(51):8049-8052). The criteria at issue in this 

case is whether petitioner’s pain occurred within the specified time-frame of 48 hours or 

less after administration of her September 21, 2016 flu vaccination. The undersigned 

finds that it does. 

b. Evaluation of the Evidence

The parties dispute whether petitioner has satisfied her burden of proof as to the 

second SIRVA criteria: “[pain occur[ring] within the specified time-frame.” To meet this 

criterion, petitioner must show by preponderant evidence that her left shoulder pain 

began within 48 hours of her September 21, 2016 flu vaccination. 42 U.S.C. § 300aa–

13(a)(1)(A); 42 C.F.R. § 100.3(c)(10). Petitioner has the burden of demonstrating the 

facts necessary for entitlement to an award by a “preponderance of the evidence.” § 

300aa-12(a)(1)(A). Under that standard, the existence of a fact must be shown to be 

“more probable than its nonexistence.” In re Winship, 397 U.S. 358, 371 (1970) 

(Harlan, J., concurring). In light of all of the above record evidence and for the reasons 

described below, the undersigned finds that there is preponderant evidence that the 

onset of petitioner’s alleged shoulder pain occurred within 48 hours of petitioner’s 

September 21, 2016 flu vaccination. 

It is undisputed that petitioner was not seen by a healthcare provider until 

January 18, 2017, almost four months after her September 21, 2016 flu shot. However, 

the medical records provide preponderant evidence demonstrating that the onset of her 

shoulder pain began within 48 hours of the administration of the flu vaccine. On the first 

occasion that petitioner sought treatment for her left shoulder injury, she reported that 

her shoulder pain “began in September on the evening she received her flu vaccine.” 

Ex. 7 at 10. Moreover, in recounting petitioner’s history of shoulder pain, the report 
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documenting petitioner’s January 22, 2017 MRI indicates that she experienced limited 

range of motion in her left shoulder since the “fluid [sic] shot.” Id. at 4. Consistent with 

this timeline is petitioner’s February 2, 2017 report to her orthopedist that her shoulder 

pain “started approximately 4 months ago after receiving a flu shot in the same 

shoulder.” Ex. 6 at 1. Petitioner’s subsequent occupational therapy evaluation on 

March 30, 2017 further corroborates petitioner’s claim that her shoulder pain began 

within 48 hours of the flu vaccination: It is noted that petitioner “has a history of 

approximately 6 months of left shoulder pain.” Ex. 2 at 68. Moreover, petitioner’s 

VAERS Report indicates an onset date of September 21, 2016, the date of petitioner’s 

vaccination. 

The undersigned recognizes that some of the aforementioned medical records 

are imprecise regarding onset (e.g., “approximately 4 months ago”); however, it would 

be a mistake to overanalyze these notations in search of a precise onset date when 

these notes were provided as generalizations. The reported timeframe reflected by the 

record as a whole encompass the 48-hour post-vaccination period. Moreover, it is 

significant that on January 18, 2017, the first time petitioner sought treatment for her 

shoulder, she reported that her pain began “on the evening she received the flu 

vaccine.” Ex. 7 at 10.

Additionally, the undersigned finds petitioner’s second affidavit explaining her 

delay in seeking treatment to be reasonable and credible. See, e.g., Stevens v. Sec’y 

of Health & Human Servs., 90-221V, 1990 WL 608693, *3 (Cl. Ct. Spec. Mstr. 

1990)(noting that clear cogent, and consistent testimony can overcome missing or 

contradictory medical records). Petitioner indicated that she had previously 

experienced mild soreness after vaccinations that typically resolved within a few days. 

Ex. 8 at 1. Petitioner also indicated that, as a nurse and busy mom, she initially sought 

to treat the pain with ibuprofen and by applying ice. Id. at 2. Given that petitioner was 

noted to have had “some relief [of] symptoms with activity modification and antiinflammatories,” (Ex. 6 at 1) petitioner’s decision not to seek immediate attention was 

reasonable. Further, because petitioner is a nurse, and it is typical for many medical 

professionals to self-treat, they often wait before seeking formal medical treatment. In 

the undersigned’s experience, petitioner’s affidavits and medical records as a whole

reflect a pattern of treatment consistent with and similar to many other compensated 

SIRVA claims. 

Based on the record as a whole, the undersigned finds that there is preponderant 

proof that the onset of petitioner’s left shoulder pain occurred within 48 hours of her 

September 21, 2016 flu vaccination. 

IV. Conclusion

The undersigned finds, based on the record as a whole, that the onset of 

petitioner’s left shoulder pain was within forty-eight (48) hours of her September 

21, 2016 influenza vaccination.

The parties are encouraged to consider an informal resolution of this claim. 

Petitioner shall file a joint status report by no later than Monday, July 8, 2019, 
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updating the court on the status of the parties’ progress informally resolving this 

claim. 

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master