# lfn 

# tbe Wniteb ~tates QCourt ofjf 

# eberal (!Claims No. 15-478V Filed: January 27, 2020 Reissued for Public Availability: February 25, 2020*

ADINA SMALL,prose, Petitioner,



### v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondellt.

Adina Small, the petitioner, actingprose. Keywords: Vaccine Act; Motion for Review; SIRVA; Off-table; Actual Causation; Injection; Influenza (flu); Nerve Injury; Expert; Medical Records; Ruling onthe Written Record

Lynn C. Sch/ie, Torts Branch, Civil Division, U.S. Department ofJustice, Washington, D.C., for the respondent.
MEMORANDUM OPINIONAND ORDER HERTLING, Judge
Tenmonths after receiving an injection with the influenza (flu) vaccine in her left arm, thepetitioner, Adina Small, told her doctor for the first time that she had been unable to liftthat arm since receiving the injection. Her doctorreferred her to a neurologist, who inferred thatthe flu shothad damaged a nerve in Ms. Small's arm, immediately causing shoulderpainthat gradually caused Ms. Small's inabilityto lift her arm. Ms. Small then sought compensation for the vaccine-related injury under the Vaccine Act, 42 U.S.C. 

### § 300aa-lOetseq. The special master denied Vaccine Act compensation for Ms. Small's alleged injury, holding that she failed to prove that the flu shot caused her injury. Smallv. Sec'y of Health & Human Servs., No. 15- 478V, slip op. at 21-22 (Fed. Cl. Spec. Mstr. Nov. 1, 2019) [hereinafterDecision], https://www.uscfc.uscourts.gov/opinion-search, reissued forpublication, 2019 WL 6463985 (Dec. 2, 2019).
The special master found insufficient evidence ofthe onset ofpain immediately following the flu shotthatthe neurologist's theory ofcausation inferred. The special master

'Pursuantto Vaccine Rule 18(b), this opinion was initially filed on January 27, 2020, and the parties were afforded 14 days to propose redactions. The parties did notpropose any redactions. Accordingly, this opinion is reissued in its original form for posting onthe court's website. 

### REISSUED FOR PUBLICATION

FEB 252020 OSM U.S.COURT OF FEDERAL CLAIMSfound instead that left-shoulderpain reported the day after Ms. Small's flu shot was more likely caused by the pre-existing spinal condition thathad previously caused pain in both ofMs. Small's upper arms. The special master also found that the absence ofany mention ofinjectionrelated pain in the records ofthree doctor visits spanning the six months following the flu shot was preponderant evidence that Ms. Small did not experience the direct-nerve-injury painthat her neurologist's theory inferred.
Ms. Small has sought review ofthe special master's decision. The special master applied the correct legal standard for proofofvaccine causation underA/then v. Sec'y of Health and Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). The special master considered the relevant evidence in the record, including Ms. Small's medical records, affidavits, and expert reports. The special masterprovided a reasonable explanation for his conclusions, including his conclusion that the immediate nerve damage posited by Ms. Small's neurologist nearly a year after the vaccine was not supported by preponderant evidence in light ofher contemporaneous medical records.
After independent review ofthe record, the Court DENIES the motion for review. 

### I. 

### BACKGROUND
A. Pre-Vaccination Spinal Condition
About a month before receiving her flu shot in 2013, Ms. Small sawa rheumatologist and reported a one-year history of"neckpainright," a feeling of"ants on [her] body," and "swelling of [her] right posteriortrunk." (Ex. 13 at 1.) The rheumatologistrecommended an x-ray and MRI ofMs. Small's cervical spine.
The record ofan MRI taken a week later, four weeks before the flu shot, set forth the "Impression," "Clinical Information," "Technique," and "Findings" ofthe radiologist, Dr. Jerrold Mink. Dr. Mink recorded Ms. Small's "Clinical Information" as "[r]ecurringneckpain radiating to both upper extremities for many years." He found "the presence ofdevelopmental cervical spinal stenosis," and he specifically described the appearance ofthejointbetween each ofthe cervical vertebrae. (Id. at 4-5.)
Two weeks before the flu shot, Ms. Small returned to the rheumatologist, who reviewed her MRI with her. The rheumatologist added cervical spinal stenosis and two abbreviations indicating that Ms. Small hadright lower-back painto the "Assessment" section ofMs. Small's record. 1 (Id. at 8.) Ms. Small also reported right shoulder and right lower-backpain. (Id.)
Ms. Small returned to the rheumatologist on the same day she received her flu shot, but the sequence ofthese two events is unclear from the record. (Id. at 16-17.) Ms. Small reported

1The special master's decision clarified thatthe abbreviations in "right sh and right LBP" are common abbreviations for "shoulder" and "lowbackpain" respectively. See Decision at 6 (citing N.M. Davis, Medical Abbreviations 186, 297 (15th ed. 2011)).
2"continued neckpain with stiffness" to the rhewnatologist. (Id. at 16.) The rheumatologist's physical exam confirmed a "decreased [range ofmotion]" in Ms. Small'sneck. (Id. at 16.) Ms. Small declined an injection for the neckpain and the rheumatologistprovided a muscle relaxant and recommended physical therapy. (Id. at 17.)
On February 12, 2013, a pharmacy worker administered the flu vaccine to Ms. Small through an intramuscular injection in Ms. Small's left arm. (Ex. 1 at 2.) The pharmacy worker also administered the shingles vaccine subcutaneously. Ms. Small does not claim thatthe subcutaneous injection ofthe shingles vaccine caused her alleged injury.
B. Post-Vaccination Care
The day after the flu shot, a physical therapist evaluated Ms. Small. (Ex. 5 at 16-18.) The physical therapistrecorded Ms. Small's chiefcomplaint as "severe pain [cervical spine and] upper trapezius muscles and [lower back] pain." (Id. at 16.) Ms. Small told thephysical therapist that her neckpain came from a strain she had suffered lifting her husband, who suffered from Parkinson's disease. (Id.) A list offour problems onthe evaluation record included "L upper extremity radicular pain." (Id.) Eight days after the flu shot, Ms. Small met withherprimary-care doctor and discussed abdominal pain she had reported to him eight months earlier, in June 2012.2 She also reported "backpain." (Ex. 2 at 13-16.) Nothing inthe record ofthis visit mentions shoulderpain or any other adverse effect attributed to the flu shot. (Ex. 2 at 13-16.)
For two months following the flu shot, Ms. Small continued physical therapy to improve her neck'srange ofmotion. (Ex. 5 at 10-16.) The handwritten records ofthese sessions are difficult to read, but they do not appear to mention injection-related pain. (Id.) Six months after the flu shot, Ms. Small returned to herprimary-care doctor and discussed the stress caused by herhusband's condition and the fact that she had suffered a viral infection a few weeks previously. (Ex. 2 at 9.) The record ofthe visit does not mention shoulder pain. (Id.)
Ten months after the shot, Ms. Small returned to her primary-care doctor and for the first time reported that she had been unable to lift her arm since receiving her flu shot. (Id. at 5-8.) The doctor recorded that Ms. Small "[g]ot two vaccines at Ride-Aid lastFebruary and can'traise her arm since." (Id at 5.) He referred Ms. Small to a neurologist. (Id. at 8.)

2 The special master characterized Dr. Yaron Elad, a cardiologist, as Ms. Small'sprimarycare doctorbecause records ofMs. Small's visits to Dr. Elad showed a pattern ofvisits for symptoms unrelated to his specialty, and Ms. Small identified him as such inher affidavit. See Decision at 5 & n.8. The Court accepts this inference as plausible and refers to Dr. Elad according!y. 3About a month and a halflater, Ms. Small saw a neurologist, Dr. Nicholas Szumski, as recommended by herprimary-care doctor. Ather initial meeting with Dr. Szumski, Ms. Small reported:



### (Id. at 2.) -- About a year ago, [she] got her flu and shingles va[ccinations] in L[eft] shoulder at the same time and spot.

-- [She] [i]mmediately had pain radiating down lateral upper arm, which she thought was normal at the time.

-- [The pain] [h]asn't changed in the year since, maintaining an ovoid. Advil helps somewhat, but [she] doesn't use it too often

- [she]just avoids tasks."

Dr. Szumski observed that Ms. Small's arm was tenderto the touch with the "greatest focus" onthe outside ofthe upper arm where itmeets the shoulder muscle (deltoid). 

### (Id. at 3.) She also experienced pain when moving it away from her body. 

### (Id.) The neurologist diagnosed Ms. Small with "neuritis" and recommended physical therapy. 

### (Id.) C. Vaccine-Compensation Claim
Two years and three months after the flu shot, Ms. Small filed a petition for compensation under the Vaccine Act. The petition alleged that the flu shot caused a shoulder injury related to vaccine administration or SIRVA, which refers to a class ofinjuries that the Secretary ofHealth and Human Services has recognized by inclusion in the Vaccine Injury Table as possibly caused by intramuscular vaccine injections administered inthe upper arm. See 42 C.F.R. 

### §100.3(c)(10). The Secretary's inclusion ofSIRVA inthe Vaccine Injury Table entitles petitioners alleging a SIRVA to a presumption that their flu shot caused their SIRVA, as long as petitioners canprove the onset ofthe listed symptoms within the listed period. See Whitecotton by Whitecotton v. Sec'y of Health & Human Servs., 81 F.3d 1099, 1102 (Fed. Cir. 1996) ("If petitioner can make such a showing, causation is presumed and petitioner is deemed to have made out aprima facie case ofentitlementto compensation under the Act.").
The chiefspecial masterpreliminarily assessed the case, and the Secretary decided to defend againstMs. Small's petition. The chiefspecial master then reassigned the case to Special Master Millman. Special MasterMillman concluded that Ms. Small's injury was not a musculo-skeletal SIRVA-type injury. Treating the injury as neurological, Special Master Millman recommended thatMs. Small provide an opinion by a neurology expert. Ms. Small filed two expertreports from her treating neurologist concludingthatthe flu shot injured a nerve inher arm; the resulting pain caused her notto use her arm; and the disuse caused a reduced range ofmotion or "frozen shoulder." (See Ex. 18; Ex. 19.) The Secretary filed a responsive expert report concludingthat Ms. Small's symptoms were inconsistent with the neurologist's conclusion that an earlier directnerve injury was the likely cause ofher later inabilityto raise her arm. (Ex. A.) The Secretary's 

### 4expert found that Ms. Small's allegedly injection-related symptoms were the "same" symptoms that could be caused by herpreexisting spinal condition. (Id) Ms. Small's neurologist respondedto the Secretary's expert in a third report (Ex. 20), and the Secretary's expert responded to that response (Ex. C).
Theparties reported difficulty agreeing on a hearing date. After Special MasterMillman retired, the case was reassigned to Special Master Horner, who decided to resolve the case withoutholding a hearing, citingthe parties' inability to agree on a hearing date. 3 (Order, June 24, 2019.) Afterfull briefing from both sides, Special Master Horner issued a decision denying compensation to Ms. Small.
Afterthe special master issued his decision, Ms. Small submitted a letter informing the special masterthat she would proceed

### pro se and requesting more time to prepare a motion for review ofthe special master's decision. The special master's staffconfirmed with Ms. Small's counsel that he intended to withdraw from representing her. The special masterthen directed that Ms. Small's letter be filed as a motion for review (Order, Nov. 26, 2019), and the case was assigned to thisjudge for review ofthe special master's decision.
The document that the special master directed the clerk to file as Ms. Small's motion for review included no memorandum ofobjections, so the Court considered Ms. Small's earlier-filed Briefin Support ofVaccine Causation (filed July 24, 2019) as her arguments onreview. 4 

### (See Order, Dec. 9, 2019.) Accordingly, the Court reviewedthe special master's conclusions that were adverse to Ms. Small, the support for those conclusions in the record, the briefing submitted before the special master by Ms. Small, and Ms. Small'smedical records for relevant evidence thatwas not considered by the special master.

3 Procedure in vaccine-injury compensation claims is governed by the Vaccine Rules, Appendix B ofthe Rules ofthe Court ofFederal Claims. Under Vaccine Rule 8(d) and 3(b)(2), a special masterhas the discretion to decide a case without holding an evidentiary hearing as long as she finds that the record was "comprehensive and fully developed before ruling on the record." 

### Kreizenbeck v. Sec'y of Health &Human Servs., 945 F.3d 1362, 1366 (Fed. Cir. 2020). The special master specifically found that Ms. Small "had a full and fair opportunity to present Dr. Szumski's opinions by filing three expertreports that clearly explainthe basis for [Dr. Szumski's] opinion." 

### Decision at 4. Thatfinding satisfies this requirement. The special master's decision notto hold an evidentiaryhearing was not an abuse ofdiscretion.

4 The Courtreasoned that allowing Ms. Small to supplement hermotion for review with an entirely newmemorandum ofobjections after the 30-day deadline to file a motion for reviewhad passed would effectively extend the time to file a motion for review, contravening the Vaccine Rule 23(b)'sprohibition on extensions oftime. (Order, Dec. 9, 2019 (citing 

### Widdoss v. Sec'y of Dep 't

### of Health &

### Human Servs., 989 F.2d 1170, 1178 (Fed. Cir. 1993).)

5

### II. STANDARD OF REVIEW
Underthe Vaccine Act, this Courtreviews a special master's decision only to determine ifit is "'arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law."' A/then, 418 F.3d at 1277 (quoting 42 U.S.C. 

### § 300aa-12(e)(2)(B)). More specifically, the Court considers a special master's interpretation ofstatutes and other legal rules anew, without deference to the special master. Hines on Behalf of Sevier v. Sec'y of Dep'tof Health &Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991). The Court defers, however, to the special master's factual findings as long as the special masterhas (I) "considered the relevant evidence of record," (2) "drawnplausible inferences," and (3) "articulated a rational basis for the decision." 5 

### Id.
Underthe arbitrary and capricious standard, the Court does not "reweigh" or re-evaluate the evidence. Porter v. Sec'y a/Health & Human Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011). The Court does notre-examine the probative value ofthe evidence or a witness's credibility. 

### Id. III. DISCUSSION
In order for a claimant to recover compensationunderthe Vaccine Act, a vaccine must be the substantial cause ofthe claimant's injury. For vaccines and injuries listed together in the Secretary ofHealth and Human Services' Vaccine Table, the Vaccine Act presumes causation upon proofofthe injury's onset withinthe listed time period after receiving the vaccine. Ms. Small did not allege a "table injury,"6 so she needed to prove that the flu vaccine was more likely

5 "The abuse ofdiscretion standard is "ordinarily used where the [decisionmaker] had a finite range ofdiscretion (e.g. to select a penalty, orto award a specific sum as damages, from within a range ofpermissible alternatives)." Hines on Behalf a/Sevier v. Sec'y o/Dep'ta/Health 

### & Human Servs., 940 F.2d 1518, 1527 (Fed. Cir. 1991). This standard "will rarely come into play except where the special master excludes evidence." Munn v. Sec'y of Dep'tof Health & Human Servs., 970 F.2d 863,870 (Fed. Cir. 1992); Isaac v. Sec'y of the Dep't a/Health 

### &Human Servs., I08 Fed. Cl. 743, 768 (rejecting petitioner's assertion that a special master's factual finding could have been an "abuse ofdiscretion" and applying the arbitrary and capricious standard to review the finding), afl'dsub nom. Isaac v. Sec'y of Health & Human Servs., 540 F. App'x 999 (Fed. Cir. 2013).

6 Ms. Small was not entitled to thepresumption ofcausation because the nerve injury described by her expert neurologist is not listed in the Vaccine Table as an injury caused by the flu vaccine. The musculoskeletal shoulder injury that Ms. Small's petition alleged as a "SIRVA" was added to the Vaccine Table after Ms. Small filed herpetition, but additions to the vaccine table are not retroactive. 42 U.S.C. 300aa-14(c)(4) ("Any modification

... ofthe Vaccine Injury Table shall apply only with respect to petitions for compensation under the Program which are filed after the effective date ofsuch regulation"); Revisions to the Vaccine Injury Table, 82 FR 6294, 6303 (Jan. 19,2017) (codified at 42 C.F.R. § 100.3) (adding SIRVA); Revisions to the Vaccine Injury

6than not (by a "preponderance ofthe evidence") a substantial cause ofher inability to raise her arm. The Federal Circuithas listed three prongs that together constitute preponderant evidence that a vaccine caused an off-table injury. A/then, 418 F.3d at 1278. The special master correctly applied thesethree "A/then prongs," requiring Ms. Small to show "(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence ofcause and effect showing that the vaccination was the reason for the injury; and (3) a showing ofa proximate temporal relationship betweenvaccination and injury." Decision at 21 (quotingA/then, 418 F.3d at 1278).
The special master accepted the medical theory proposed by Ms. Small's neurologist and held that she satisfiedAlthen's first prong. The special master found, however, that Ms. Small failed to satisfy the second andthird prongs with sufficientproofofthe facts Ms. Small's firstprong medical theory required. The special master further consideredwhether Ms. Small could prove the facts to establish causation under a SIRVA-theory, but found thatMs. Small'spreexisting spinal condition excluded her symptoms from fitting within the definition ofa SIRVA.
For an off-table injury claim, a petitioner's failure to satisfy any one ofthe threeA/then prongs requires the special masterto deny relief. Accordingly, the Courtreviews the special master's holding that Ms. Small failed to satisfy prong two oftheA/thentest for preponderant evidence ofvaccine causation. The special master found thatthere was "notpreponderant evidence that [Ms. Small] experienced injection-related shoulderpainimmediately following her vaccination or at any time priorto August 8, 2013." Decision at 23. As long as the special master (1) considered the record evidence relevantto whether Ms. Small experienced immediate pain afterher flu shot and (2) rationally explained howthis evidence and any plausible inferences the special master drew from itproducedhis ultimate finding, the Court is "compelled"to uphold the special master's decision. Milik v. Sec'y of Health & Human Servs., 822 F.3d 1367, 1376 (Fed. Cir. 2016). 

### A. Immediate Pain ofDirectNerve Injury
The expert report ofMs. Small'sneurologist, Dr. Szumski, offered the medical theory that a flu shot could immediately cause painful nerve damage to a vaccine recipient's arm, that suchpain could cause disuse ofthe affected arm, and that such disuse overtime could cause a limited range ofmotion inthe affected arm. The special master accepted this direct-nerve-injury theory as persuasive and held that it satisfied the firstA/thenprong. Decision at 22.
A/thenprongtwo requires "proofofa logical sequence ofcause and effect, usually supported by facts derived from a petitioner's medical records." Decision at 22. Dr. Szumski's expertreport suggestedthe following sequence ofcause and effect to fit the theory ofcausation it used for prong one andto satisfy prongtwo: Afterher flu shot, Ms. Small suffered the

Table, Delay ofEffective Date, 82 Fed. Reg. 11321 (Feb. 22, 2017) (delaying effective date ofthe final rule that added SIRVA until March 21, 2017).
7immediate onset ofpain from nerve damage. She disfavored her left arm to avoid the pain. This disuse ofher left arm then gradually caused Ms. Small to develop a limited range ofmotion or "frozen shoulder." Dr. Szumski relied on a notation from Ms. Small'sphysical therapist suggestingthatthe provider suspected "frozen shoulder."
The special master held that Dr. Szumski's report failed to set forth a "logical sequence ofcause and effect" based on two factual findings: (a) there was "notpreponderant evidence that petitioner experienced injection-related shoulderpain immediately following her vaccination or at any time prior to August 8, 2013," and (b) Ms. Small's one report ofimmediatepostvaccination shoulder pain is "better explained by her [then-]ongoing and preexisting [spinal] condition." Decision at 23.
1. No Immediate Injection-Related Pain
The records ofMs. Small'sthree doctor visits over the six months following her flu shot include no mention ofinjection-related pain. From this absence ofreported shoulder pain in Ms. Small's records, the special master inferred that Ms. Small did not immediately experience injection-related shoulderpain. He weighed this inference against claims in the affidavits ofMs. Small and her daughter and the opinion ofDr. Szumski that Ms. Small did experience pain immediately after the injection. Ultimately, the special master found that the lack ofany report ofvaccine-related pain in Ms. Small's medical records outweighed the affidavits and Dr. Szumski's opinion. "Ithas generally been heldthat oral testimony which is in conflict with contemporaneous documents is entitled to little evidentiary weight." Vergara v. Sec'y a/Health & Human Servs., No. 08-882V, 2014 WL 2795491, at *4 (Fed. Cl. May 15, 2014) (citing Murphy v. Sec'y, HHS, 23 Cl. Ct. 726, 733 (1991), affdwithoutopinion, 968 F.2d 1226 (Fed. Cir. 1992). While, "the absence ofa reference to specific symptoms in a medical record does not conclusively establish the absence ofsymptoms during that time frame," id., medical records deserve some presumption ofaccuracy and completeness because "propertreatmenthang[s] in the balance."7 Cucuras v. Sec'y of Dep'tof Health 

### &Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
The inference that no immediate injection-related pain likely occurred based on the absence ofreports ofpain in Ms. Small's medical records was plausible, when viewing the record as a whole. The special master did not take the absence ofsymptoms inMs. Small's records as conclusive, butrather looked to the kinds ofvisits recorded and the period oftime over which they occurred in weighing the records' value against the expectation ofimmediate shoulderpain suggested by Ms. Small's affidavit and Dr. Szumski's report. Decision at 16.

7 A similartheory ofthe inherentreliability ofmedical records and ofstatements made to medical providers undergirds the exceptionto the prohibition on hearsay evidence for statements made for medical diagnosis and treatment. See Fed. R. Evid. 803(4).

8The inference was especially plausible considering that the doctor Ms. Small visited was effectively her primary-care physician. One ofthe visits dealt with a similar kind ofsymptom (neck pain) that mighthave required disclosure ofarm pain for proper diagnosis and treatment. Indeed, it was during a visit to the same doctor-albeitten months afterthe flu shot-thatMs. Small first reported injection-related symptoms. 8 Moreover, the special master considered and rationally distinguished decisions from other special masters concluding that the timing ofthe onset ofan injury canbe proven even when records ofthe injury fall outside ofthe relevant onsetperiod. See Decision at 18. He identified the length ofMs. Small'sten-month delay in reporting injection-related shoulder pain, hertwo general doctor visits in the six months after vaccination, and contemporaneous records suggesting that Ms. Small's symptoms are attributable to herpre-existing spinal condition as distinguishing facts. Id. Indeed, the Court's review ofthe relevant special master decisions accepting long delays in the report ofan immediate-onset injury confirms that Ms. Small's non-contemporaneous evidence like her eventual report ofshoulder painto her doctor and her daughter's affidavit were even more delayed and lacked the specificity ofthe non-contemporaneous evidence credited in other cases. See, e.g., Forman-Franco v. Sec'yof Health & Human Servs., No. 15-1479V, 2018 WL 1835203 (Fed. Cl. Spec. Mstr. Feb. 21, 2018) (unpublished) (four-month delay, but with testimony ofpetitioner's office manager, who testified that he had to help petitioner remove her jacketthe day after her vaccination); Tenneson v. Sec'y a/Health & Human Servs., 142 Fed. Cl. 329,339 (2019) (four-month delay, but medical records "repeatedly and consistently" placed onset within 48 hours ofthe vaccination and overall pattern oftreatment was consistent with other SIRVA claims); Gurney v. Sec'y of Health & Human Servs., No. 17-481V, 2019 WL 2298790, at *5 (Fed. Cl. Mar. 19, 2019), reconsideration denied, No. 17-481V, 2019 WL

8 In concluding that the special master's inference was plausible, the Court gives no weightto the portions ofthe doctor-visit records that the special master characterized as a "review of symptoms" or "musculoskeletal physical exam" thatwas "negative for myalgias andjointpain," reflected a "[n]ormal range ofmotion," and no swelling ("edema"). Decision at 8. A footnote in the special master's decision discloses thatthese "findings appear verbatim across a number of encounters even whenthey appear inconsistent with Dr. Elad'smore detailed notations." The special master's footnote failed to note specifically thatthe record ofthe visit at which Ms. Small actually reported shoulder pain and the inability to raise her arm still includes the text "negative for myalgias andjointpain" and "[n]ormalrange ofmotion" under the record's "Review of Systems" and "Physical Exam." (See Ex. 2 at 5, 7.) The first change to these checklist-like sections ofMs. Small'smedical records does not appear until a late-2014 visitwhen the doctor notes a thyroid cyst. (Id. at 3, 7, 11, 15, 19, 49, 53, 57.) Nevertheless, considering the absence ofshoulderpaininthe substantive portions ofthe records, it was notunreasonable for the special masterto considerthese records as evidence that Ms. Small did not immediately experience shoulder pain from the flu shot.
92865490 (Fed. Cl. Apr. 24, 2019) (six-month delay, butwith affidavit from doctor who remembered petitioner's immediate complaints ofpain).
It was reasonable for the special masterto give his medical-records-based inference more weight than the affidavits and Dr. Szumski's expert repmt. Ms. Small's affidavit claimed that she returned to Rite Aid "afew months after the vaccine" to complain about her shoulderpain. (Ex. 15 at 2.) The special master found this recollection inconsistentwiththe previouslydiscussed lack ofany mention ofshoulder pain in the records ofMs. Small's doctor visits in the months after the flu shot. Decision at 

### 17. That Ms. Small soughtprimary care twice during that period, the special master concluded, contradicted Ms. Small's explanation for her delay in seeking care for the alleged injection-relatedpain. 

### Id. Finally, the special master noted that Ms. Small's affidavit did not address howMs. Small was affected by her spinal condition after her flu shot. 

### Id.
The special master declined to credit the affidavit ofMs. Small's daughter claiming that she observed Ms. Small suffering from shoulderpain after the flu shot because the affidavit never specified a timeframe withinthe ten-month period before Ms. Small reported the symptoms to her doctor and did not address Ms. Small's pre-existing spinal condition. 

### Id.
The special master considered Dr. Szumski's repo1t infen-ing the onset ofinjectionrelated shoulder pain as the cause ofMs. Small's eventual inability to raise her rum-firsttreated byDr. Szumski almost year after the flu shot. The special master offered multiple reasons why he considered Dr. Szumski's opinion "unpersuasive overall." Decision at 23. Dr. Szumki's opinion failed to address Ms. Small's preexisting spinal condition, which was noted in her medical records as the cause ofher condition at and following the time ofvaccination. 

### Id. Dr. Szumski never actually observed ortreated the direct-nerve injury that he believes led to Ms. Small's "frozen shoulder." 

### Id. at 24. Moreover, a musculoskeletal injury like frozen shoulder is outside ofDr. Szumski's expertise as a neurologist. 

### Id.
The special master considered that Dr. Szumski treated Ms. Small, butfound the normal deference to the findings oftreating physicians unwarranted because Dr. Szumski "'only sawthe patient afterthe injury and basedhis opinion on the srune evidence as relied upon by the retained experts."' Decision at 23-24 (quotingNuttall v. Sec'y of Health & Human Servs., 122 Fed. Cl. 821, 832 (2015), 

### ajf'd, 640 Fed. Appx. 996 (Fed. Cir. 2016)).
The Court finds especially persuasive the special master's observationthat neither Dr. Szumski's treatment records nor his later expert reports indicate that he considered orwas even aware ofMs. Small'spre-vaccination spinal condition and reports ofneck pain radiating into her upper extremities. Decision at 16. 

### It was not e1Tor for the special master to reject an expert opinionthat failed to address a pre-existing conditionthat-evenfrom a lay review ofMs. Small's medical records-was a possible source ofthe symptoms Ms. Small attributes to the flu shot.
Without proofofa distinct injury following the shot, the special master found no logical sequence ofevents that demonstratedthe petitioner's direct nerve injury theory ofcausation

10underA/thenprong two. 9 Having failed to meet the second oftheA/thenprongs, Ms. Small's claim failed at this stage. 

### 2. Next-Day Pain Was Likely Caused by Spinal Condition
A list of"problems" in Ms. Small's physical-therapy evaluation performed the day after her flu shot lists "radicular" left-shoulderpain. The special master analyzed the meaning of "radicular" in the context ofshoulderpain and concluded that it referred to the inflammation or impingement ofnerve roots, possibly by a bony spur, a conditionthat could cause neck or shoulderpain. Decision at 16 n.21. The special master further noted that the respondent's expert report confirmed that Ms. Small's spinal condition could cause left-arm radicular pain. Id The special master found that the "radicular" left-shoulderpain described inMs. Small's next-day physical therapy evaluation was most likely caused by herpre-existing spinal condition, which was documented to have caused pain radiating into her arms. 

### It was rational for the special masterto considerthe physical therapist's use ofthe term "radicular" as evidence that the left shoulderpain was caused byMs. Small'spre-existing spinal condition and was not injectionrelated.Although Ms. Small was seekingphysical therapy for her spinal condition and nothing in the record indicates that the physical therapistknewofMs. Small'srecent flu shot, the physical therapist was on notice to consider alternate causes ofMs. Small'spain. The evaluationrecord shows that Ms. Small suggested a "strain" from lifting her husband as the cause ofherpain, rather thanherrecently-diagnosed spinal condition or the flu shot. (Ex. 5 at 16.) Despite this suggestion from Ms. Small, the provider still characterized the shoulderpain as "radicular." This professional's contemporaneous use ofthe technical term "radicular" on a record presumably made primarily for reference by her and otherprofessionals, even ifrecording the patient's selfreport ofsymptoms, implicates the professional'sjudgmentthat a term like "radicular" applies to the painthe patient is describing. The physical therapist could have omitted "radicular" altogether or used a broader descriptor ifshe had doubts about the cause ofMs. Small's left shoulderpain. The special master's conclusion thatMs. Small's next-day left-shoulderpain was not evidence ofa direct-nerve injury butwas more likely caused byher spinal condition, was rational. 

### B. SIRVA Criteria
The Court finds no error inthe special master's conclusion that Ms. Small could not provethe musculoskeletal SIRVA injury she alleged inherpetition as an alternative to her neurologist's theory ofdirect nerve injury. "SIRVAis a specific conceptby which some musculoskeletal injuries temporally associated to vaccination are deemedto have been vaccine causedwhere they meet certain criteria that rule out other causes." Decision at 22 (emphasis

9 Withoutproofofa distinct injury, the special master couldnotjudge whether the vaccination and injury were close enough in time to each other to infer a cause and effect relationship underAlthen'sprong three.
11added). The SIRVA concept has been used as a theory ofcausation in off-table claims under A/then prong one, based on the Secretary's rulemaking establishing SIRVA as a Table injury and the Secretary's history ofconceding causation in prior, pre-Table SIRVA claims. See, e.g., Tenneson v. Sec'y of Health & Human Servs., No. 16-1664V, 2018 WL 3083140, at *7 (Fed. Cl. Spec. Mstr. Mar. 30, 2018), review denied, 142 Fed. Cl. 329 (2019).
The Court agrees with the special masterthat Ms. Small's pre-existing spinal conditiondocumented to cause pain inher upper arms-is a "condition or abnormality [] presentthat would explain the vaccine recipient's symptoms." 42 C.F.R. 

### § 100.3(10)(iv) (listing exclusions from the definition ofa SIRVA). With the fact ofMs. Small's pre-existing spinal condition definitionally excluding her symptoms from fitting within the SIRVA-injury concept, Ms. Small could show no other facts underAlthen's second prong that would demonstrate a logical sequence ofcause and effect consistent with a SIRVA theory ofcausation.
IV. CONCLUSION Failing to showthe existence ofeitherthe direct nerve injury or SIRVAthat she alleged that her flu shot caused, Ms. Small failed to prove that a vaccine caused her injury underA/then. The special master considered the evidence relevant to this finding and explained his reasons for crediting ordiscounting it. The special master's decision denying compensation was not arbitrary and capricious or contrary to law. The petitioner's motion for review is DENIED. The Clerk is directed to enter finaljudgment accordingly. Each side will bear its own costs. It is so ORDERED. 

# /k,,j

# A

.

# JI~ Richard A. Hertling Judge

12