In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 18-129V

Filed: April 26, 2019

UNPUBLISHED

KENNETH CAPRA,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Special Processing Unit (SPU); 

Findings of Fact Regarding Site of 

Vaccination; Influenza (Flu) Vaccine; 

Shoulder Injury Related to Vaccine 

Administration (SIRVA)

Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.

Ashley Monique Simpson, U.S. Department of Justice, Washington, DC, for respondent.

ORDER AND FACT RULING1

Dorsey, Chief Special Master:

On January 26, 2018, 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”). Petitioner alleges that he suffered a Shoulder Injury Related to Vaccine 

Administration (“SIRVA”) as a result of receiving an influenza (“flu”) vaccination on 

October 29, 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 decision on the United States Court of Federal Claims' website. 

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, upon review, the 

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

material from public access. Because this unpublished decision contains a reasoned explanation for the 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).
2

On November 19, 2018, respondent filed a status report stating that proof of 

petitioner’s flu vaccination administration in his right arm remains outstanding. ECF No. 

20. Further, respondent noted that the vaccination record filed indicates that petitioner

received a flu vaccine in his left arm. Id. at n.1. For the reasons described below, the 

undersigned finds there is preponderant evidence sufficient to establish petitioner 

received the October 29, 2016 flu vaccination in his right injured arm.

I. Procedural History

On January 26, 2018, petitioner filed a petitioner for compensation and medical 

records. See Exhibits 1-7, ECF No. 1. Petitioner later filed an affidavit on March 28, 

2018 (ECF No. 8), updated medical records on May 8, 2018 (ECF No. 10), and a 

Witness Affidavit on May 29, 2018. ECF No. 11. 

On November 19, 2018, respondent filed a status report stating that the 

vaccination record indicates that petitioner’s flu vaccination was administered in his left 

arm, however the petitioner alleges a right-shoulder SIRVA. ECF No. 20. A status 

conference was held on February 15, 2019 to discuss the parties’ respective positions. 

ECF No. 21. Respondent indicated that the location of petitioner’s flu vaccination may 

be an issue the Court needs to weigh in on, and petitioner agreed to file a Motion for a 

Ruling on the Record. Id. 

Petitioner filed a Motion for Fact Ruling on the Record on March 25, 2019 (“Pet. 

Br.”), and respondent filed a response on April 8, 2019 (“Res. Br.”). ECF Nos. 23, 24.

Petitioner’s motion is now ripe for adjudication.

II. Factual History

A. Medical Records

On Saturday, October 29, 2016, petitioner received a flu vaccination at Rite Aid 

pharmacy. Ex. 1. The vaccination record states that the immunization was 

administered in petitioner’s left upper arm. Ex. 1 at 2.

On November 1, 2016, petitioner presented to Easter Seals Colorado. Ex. 2 at 7. 

Petitioner’s medical provider stated “[petitioner] received his flu shot Saturday, c/o pain 

at site of R bicep – feels slightly more swollen and hard than L bicep.... Advised heat to 

site and arm exercises.” Id. 

On November 14, 2016, petitioner presented to Dr. Sara Volkmar with complaints 

of right arm pain. Ex. 3 at 11, 13. Dr. Volkmar noted that petitioner received a flu 

vaccination two weeks earlier, and “ever since he got his flu shot he has had R[ight] 

shoulder pain”. Ex. 3 at 13-14. Dr. Volkmar also noted that “[petitioner] has rotator cuff 
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pathology, bursitis, tendinitis, or similar” and that petitioner “feels that the flu shot was 

the inciting incident.” Id. at 14.

Petitioner again presented to Easter Seals Colorado on November 29, 2016. Ex. 

7 at 2. Petitioner’s medical provider noted “[petitioner] remains unable to fully raise R 

arm after flu shot....”

Petitioner again complained of ongoing right shoulder pain on December 5, 2016 

to Anthony Euser, D.O.3 Ex. 3 at 8-9. At that time, petitioner reported pain in his 

“R[ight] shoulder post flu in[j]ection into deltoid.” Id. at 8.4 

From December 19, 2016 through October 20, 2017, petitioner attended physical 

therapy and occupational therapy sessions for pain in his right upper arm at Easter 

Seals Colorado. Id. at 9-10, 17-18, 25-26.

Petitioner underwent a right arm NCS/EMG on January 26, 2017. Ex. 3 at 57-60. 

At that time, petitioner complained of “weakness and pain in his right [shoulder]. He 

says it started in 10/2016 after getting a flu shot.” Ex. 3 at 57. The NCS/EMG was 

normal. Id. 

On March 9, 2017, petitioner presented to Dr. Lyndsey Hale of Blue Sky 

Neurology with complaints of right arm pain. Dr. Hale noted that petitioner “reports 

getting a flu shot in his right arm in October 2016. Since then, he has continued to have 

right arm pain.” Ex. 5 at 4. Dr. Hale assessed petitioner with right shoulder pain, and 

stated his “symptoms may be musculoskeletal or joint related. Localized trauma from 

his flu shot could also be possible.” Id. at 5. Petitioner later underwent an MRI of his 

right shoulder on June 1, 2017. Ex. 3 at 54. 

On April 17, 2017, petitioner began physical therapy at Altitude Physical Therapy 

and Sports Medicine. Ex. 4 at 14. Petitioner reported “pain in R[ight] shoulder 

beginning 10/2016 after a flu shot. He had intense pain immediately during the shot 

that has not improved.” Id. Petitioner attended eight physical therapy sessions 

between April 27, 2017 and July 6, 2017. Id. at 4-23, 30-31.

Petitioner again complained of ongoing right shoulder pain on June 23, 2017 to 

Anthony Euser, DO. Ex. 3 at 3-5. At that time, petitioner reported pain in his right 

shoulder, and that he “[h]as noted since injection in 2016”. Id. at 4.

 

3 D.O. stands for Doctorate of Osteopathic Medicine. Unless a particular degree is specified the first time 

an individual is referenced, it is assumed any individual with the title of “Dr.” has earned a Doctor of 

Medicine (M.D.). Doctors who have earned a D.O. may have received different training but have similar 

privileges and responsibilities as doctors with an M.D. 

4 The record appears to have a typographical error in that it states petitioner has right shoulder pain “post flu 

infection into deltoid.” Ex. 3 at 8 (emphasis added).
4

On July 14, 2017, petitioner complained of right shoulder pain to Dr. William 

Ciccone. Ex. 6 at 1. Petitioner stated that he “had a flu shot back in October of 2016 

where he felt they put the injection high on his shoulder.... Since that time, he has had 

pain with reaching and lifting.” Id. Petitioner also recorded “Flu shot” on the intake form 

under the heading for “What Happened”. Id. at 43. Petitioner saw Dr. Ciccone on two 

additional occasions, August 25, 2017 and October 13, 2017. Id. at 9-12, Ex. 9 at 1-5. 

Both times he complained of right shoulder pain. Further, on August 25, 2017, 

petitioner was assessed with “impingement following vaccination.” Ex. 6 at 11.

B. Petitioner’s Affidavits

In his affidavit, which was signed and notarized on January 12, 2017, petitioner 

stated that he received a flu vaccine in his right shoulder on October 29, 2016. Ex. 8 at 

1. 

Petitioner also filed an affidavit of Norma Kaholo, who has known petitioner for 3 

years through the Easter Seals Foundation. Ex. 10 at 1. Ms. Kaholo stated that she 

picked up petitioner the first week in November of 2016, and recalled he “had a hard 

time with movement in his right arm....” Id. Ms. Kaholo also specified that petitioner 

“stated he received a flu shot at Rite Aid over the weekend and thinks something is 

wrong.” Id. 

III. Party Contentions

In his motion, petitioner notes that his affidavit states he received a flu shot in his 

right shoulder. Pet. Br. at 6. Petitioner also argues that the medical records 

consistently note he complained of right arm pain, that the records link the arm pain to 

his flu vaccination, and that certain records specifically state his arm pain may be due to 

his flu vaccine. Pet. Br. at 6-7. Petitioner recognizes that the vaccination record 

indicates the flu vaccine was administered in his left arm, but stresses that record is an 

exception.

Respondent argues that the most contemporaneous medical record, petitioner’s 

actual vaccination record, states the flu shot was administered in petitioner’s left arm. 

Res. Br. at 3. Further, respondent notes that, despite petitioner’s statements and 

reports to his physicians, a factual finding may not be based on the claims of a 

petitioner alone, unsubstantiated by medical record or medical opinion. Res. Br. at 3.
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IV. Findings of Fact

A. Legal Standard

A petitioner must prove, by a preponderance of the evidence, the factual 

circumstances surrounding her claim. § 13(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). 

To resolve factual issues, the special master must weigh the evidence presented, 

which may include contemporaneous medical records and testimony. See Burns v. 

Sec'y of Health & Human Servs., 3 F.3d 415, 417 (Fed.Cir.1993) (explaining that a 

special master must decide what weight to give evidence including oral testimony and 

contemporaneous medical records). As the Federal Circuit has noted, it is appropriate 

for a special master to give greater weight to evidence contained in medical records 

created closer in time to the vaccination, even if the information is provided as part of a 

medical history. Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 

(Fed. Cir. 1993) (medical records are generally trustworthy evidence). The Circuit Court 

explained that 

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.

Id.

Additionally, when determining the impact of the evidence presented, the special 

master should consider factors such as the reliability and consistency of the evidence. 

Burns, 3 F.3d at 416. “Written records which are, themselves, inconsistent, should be 

accorded less deference than those which are internally consistent. If a record was 

prepared by a disinterested person who later acknowledged that the entry was incorrect 

in some respect, the later correction must be taken into account.” Murphy v. Sec’y of 

Health & Human Servs., No. 90-882V, 1991 WL 74931, at *4 (Fed. Cl. Spec. Mstr. Apr. 

25, 1991), aff'd, 23 Cl. Ct. 726 (1991), aff'd per curium, 968 F.2d 1226 (Fed.Cir.1992). 

B. Site of Vaccination

There is consistent evidence throughout the medical records sufficient to 

establish petitioner received the flu vaccination in his right arm. When seeking 

treatment for his right arm/shoulder pain, petitioner regularly attributed his condition to 

the flu vaccination he received in his injured right arm. Not once does petitioner indicate 

that he received the vaccination in his left arm or seek treatment for any left arm injury. 
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On November 1, 2016, three days after petitioner’s vaccination, he reported that 

he received a flu shot and there was pain at the site of his right bicep. Ex. 2 at 7. 

Petitioner saw Dr. Volkmar on November 14, 2016, when he again linked his right 

shoulder pain to his flu shot. Dr. Volkmar noted that “ever since petitioner got his flu 

shot he has had R[ight] shoulder pain....” Ex. 3 at 13-14. At that time, Dr. Volkmar 

also noted that petitioner felt “the flu shot was the inciting incident” to his shoulder pain. 

Id. at 14.

Thereafter, between December 5, 2016 and August 25, 2017, petitioner

repeatedly linked his right shoulder pain to a flu vaccination in multiple medical visits 

with at least six different medical professionals. See, e.g., Ex. 3 at 8 (a December 5, 

2016 medical record noting petitioner reported right shoulder pain “post flu injection in 

deltoid”); Ex. 3 at 57 (a January 26, 2017 record noting petitioner complained of pain in 

his right shoulder that “it started in 10/2016 after getting a flu shot”); Ex. 5 at 4 (record 

from March 9, 2017 noting that petitioner “reports getting a flu shot in his right arm in 

October 2016” and “[s]ince then, he has continued to have right arm pain”); Ex. 4 at 14 

(physical therapy records stating that petitioner reported “pain in R[ight] shoulder 

beginning 10/2016 after a flu shot”); Ex. 3 at 4 (medical record from June 23, 2017 

stating that petitioner reported pain in his right shoulder “since injection in 2016”); Ex. 6 

at 11 (an August 25, 2017, record showing that petitioner was assessed with right 

shoulder “impingement following vaccination”).

Respondent correctly observes that this information was provided by petitioner, 

but he did so close in time to the vaccination, for the purpose of obtaining medical 

treatment. Moreover, the recorded observations from the Easter Seals Colorado

corroborate the information provided by petitioner. Records from the November 1, 2016 

visit show that petitioner’s right arm was more swollen and hard than his left arm. Ex. 2 

at 7. Further, petitioner sought and received treatment only for a right shoulder injury.

The only evidence in this case which contradicts petitioner’s claim that he 

received the vaccination alleged as causal in his right injured arm is the record of 

vaccination. See Ex. 1 at 2. However, when the record is viewed in its entirety, the

preponderance of evidence, including numerous medical records and affidavits, 

outweigh the single contradictory record in this case.

For all of the above reasons, the undersigned finds there is preponderant 

evidence showing petitioner received the flu vaccination alleged as causal in his right 

injured arm. 

V. Conclusion

In light of the undersigned’s finding that petitioner received this vaccination in her 

right injured arm, petitioner’s motion is granted. 

Accordingly, the following is ORDERED: Respondent shall file, by no later 

than Monday, May 27, 2019, a status report indicating how he intends to proceed 
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in this case. At a minimum, the status report shall indicate whether he is willing to 

engage in tentative discussions regarding settlement or proffer or is opposed to 

negotiating at this time. In the event respondent wishes to file a Rule 4(c) report, he 

may propose a date for filing it, but shall indicate his position on entering into 

negotiations regardless of whether he wishes to file a Rule 4(c) report.

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master