lfn tbe Wniteb ~tates QCourt of jf eberal (!Claims 

No. 15-478V 

Filed: January 27, 2020 

Reissued for Public Availability: February 25, 2020* 

ADINA SMALL, prose, 

Petitioner, 

v. 

SECRETARY OF HEAL TH AND 

HUMAN SERVICES, 

Respondellt. 

Adina Small, the petitioner, acting prose. 

Keywords: Vaccine Act; 

Motion for Review; SIRVA; 

Off-table; Actual Causation; 

Injection; Influenza (flu); 

Nerve Injury; Expert; Medical 

Records; Ruling on the 

Written Record 

Lynn C. Sch/ie, Torts Branch, Civil Division, U.S. Department of Justice, Washington, D.C., for 

the respondent. 

MEMORANDUM OPINION AND ORDER 

HERTLING, Judge 

Ten months after receiving an injection with the influenza (flu) vaccine in her left arm, 

the petitioner, Adina Small, told her doctor for the first time that she had been unable to lift that 

arm since receiving the injection. Her doctor referred her to a neurologist, who inferred that the 

flu shot had damaged a nerve in Ms. Small's arm, immediately causing shoulder pain that 

gradually caused Ms. Small's inability to lift her arm. Ms. Small then sought compensation for 

the vaccine-related injury under the Vaccine Act, 42 U.S.C. § 300aa-l O et seq. 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. Small v. Sec'y of Health & Human Servs., No. 15-

478V, slip op. at 21-22 (Fed. Cl. Spec. Mstr. Nov. 1, 2019) [hereinafter Decision], 

https://www.uscfc.uscourts.gov/opinion-search, reissued for publication, 2019 WL 6463985 

(Dec. 2, 2019). 

The special master found insufficient evidence of the onset of pain immediately 

following the flu shot that the neurologist's theory of causation inferred. The special master 

'Pursuant to 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 not propose any redactions. 

Accordingly, this opinion is reissued in its original form for posting on the court's website. 

REISSUED FOR PUBLICATION

FEB 25 2020

OSM

U.S.COURT OF FEDERAL CLAIMS
found instead that left-shoulder pain reported the day after Ms. Small's flu shot was more likely 

caused by the pre-existing spinal condition that had previously caused pain in both of Ms. 

Small's upper arms. The special master also found that the absence of any mention ofinjectionrelated pain in the records of three doctor visits spanning the six months following the flu shot 

was preponderant evidence that Ms. Small did not experience the direct-nerve-injury pain that 

her neurologist's theory inferred. 

Ms. Small has sought review of the special master's decision. The special master applied 

the correct legal standard for proof of vaccine causation under A/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 master provided 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 of her contemporaneous 

medical records. 

After independent review of the 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 saw a rheumatologist and 

reported a one-year history of "neck pain right," a feeling of "ants on [her] body," and "swelling 

of [her] right posterior trunk." (Ex. 13 at 1.) The rheumatologist recommended an x-ray and 

MRI of Ms. Small's cervical spine. 

The record of an MRI taken a week later, four weeks before the flu shot, set forth the 

"Impression," "Clinical Information," "Technique," and "Findings" of the radiologist, Dr. 

Jerrold Mink. Dr. Mink recorded Ms. Small's "Clinical Information" as "[r]ecurring neck pain 

radiating to both upper extremities for many years." He found "the presence of developmental 

cervical spinal stenosis," and he specifically described the appearance of the joint between each 

of the 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 had right lower-back pain to the "Assessment" section of Ms. Small's 

record. 1 (Id. at 8.) Ms. Small also reported right shoulder and right lower-back pain. (Id.) 

Ms. Small returned to the rheumatologist on the same day she received her flu shot, but 

the sequence of these two events is unclear from the record. (Id. at 16-17.) Ms. Small reported 

1 The special master's decision clarified that the abbreviations in "right sh and right LBP" are 

common abbreviations for "shoulder" and "low back pain" respectively. See Decision at 6 

(citing N.M. Davis, Medical Abbreviations 186, 297 (15th ed. 2011)). 

2 
"continued neck pain with stiffness" to the rhewnatologist. (Id. at 16.) The rheumatologist's 

physical exam confirmed a "decreased [range of motion]" in Ms. Small's neck. (Id. at 16.) Ms. 

Small declined an injection for the neck pain and the rheumatologist provided 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 that the 

subcutaneous injection of the 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 therapist recorded Ms. Small's chief complaint as "severe pain [cervical spine and] 

upper trapezius muscles and [lower back] pain." (Id. at 16.) Ms. Small told the physical 

therapist that her neck pain came from a strain she had suffered lifting her husband, who suffered 

from Parkinson's disease. (Id.) A list of four problems on the evaluation record included "L 

upper extremity radicular pain." (Id.) 

Eight days after the flu shot, Ms. Small met with her primary-care doctor and discussed 

abdominal pain she had reported to him eight months earlier, in June 2012.2 She also reported 

"back pain." (Ex. 2 at 13-16.) Nothing in the record of this visit mentions shoulder pain 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's range of motion. (Ex. 5 at 10-16.) The handwritten records of these 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 her primary-care doctor and 

discussed the stress caused by her husband's condition and the fact that she had suffered a viral 

infection a few weeks previously. (Ex. 2 at 9.) The record of the 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 last February and can't raise 

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's primarycare doctor because records of Ms. Small's visits to Dr. Elad showed a pattern of visits for 

symptoms unrelated to his specialty, and Ms. Small identified him as such in her affidavit. See 

Decision at 5 & n.8. The Court accepts this inference as plausible and refers to Dr. Elad 

according! y. 

3 
About a month and a half later, Ms. Small saw a neurologist, Dr. Nicholas Szumski, as 

recommended by her primary-care doctor. At her 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 tender to the touch with the "greatest 

focus" on the outside of the upper arm where it meets 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 of injuries that the 

Secretary of Health and Human Services has recognized by inclusion in the Vaccine Injury Table 

as possibly caused by intramuscular vaccine injections administered in the upper arm. See 42 

C.F.R. § 100.3( c )(10). The Secretary's inclusion of SIRVA in the Vaccine Injury Table entitles 

petitioners alleging a SIRVA to a presumption that their flu shot caused their SIRVA, as long as 

petitioners can prove the onset of the 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 a prima facie case of entitlement to compensation under the Act."). 

The chief special master preliminarily assessed the case, and the Secretary decided to 

defend against Ms. Small's petition. The chief special master then reassigned the case to Special 

Master Millman. 

Special Master Millman concluded that Ms. Small's injury was not a musculo-skeletal 

SIRVA-type injury. Treating the injury as neurological, Special Master Millman recommended 

that Ms. Small provide an opinion by a neurology expert. Ms. Small filed two expert reports 

from her treating neurologist concluding that the flu shot injured a nerve in her arm; the resulting 

pain caused her not to use her arm; and the disuse caused a reduced range of motion or "frozen 

shoulder." (See Ex. 18; Ex. 19.) The Secretary filed a responsive expert report concluding that 

Ms. Small's symptoms were inconsistent with the neurologist's conclusion that an earlier directnerve injury was the likely cause of her later inability to raise her arm. (Ex. A.) The Secretary's 

4 
expert found that Ms. Small's allegedly injection-related symptoms were the "same" symptoms 

that could be caused by her preexisting spinal condition. (Id) Ms. Small's neurologist 

responded to the Secretary's expert in a third report (Ex. 20), and the Secretary's expert 

responded to that response (Ex. C). 

The parties reported difficulty agreeing on a hearing date. After Special Master Millman 

retired, the case was reassigned to Special Master Horner, who decided to resolve the case 

without holding a hearing, citing the parties' inability to agree on a hearing date.3 (Order, June 

24, 2019.) After full briefing from both sides, Special Master Horner issued a decision denying 

compensation to Ms. Small. 

After the special master issued his decision, Ms. Small submitted a letter informing the 

special master that she would proceed pro se and requesting more time to prepare a motion for 

review of the special master's decision. The special master's staff confirmed with Ms. Small's 

counsel that he intended to withdraw from representing her. The special master then directed that 

Ms. Small's letter be filed as a motion for review (Order, Nov. 26, 2019), and the case was 

assigned to this judge for review of the 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 of objections, so the Court considered Ms. Small's earlier-filed 

Brief in Support of Vaccine Causation (filed July 24, 2019) as her arguments on review.4 (See 

Order, Dec. 9, 2019.) Accordingly, the Court reviewed the 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's medical records for relevant evidence 

that was not considered by the special master. 

3 Procedure in vaccine-injury compensation claims is governed by the Vaccine Rules, Appendix 

B of the Rules of the Court of Federal Claims. Under Vaccine Rule 8(d) and 3(b)(2), a special 

master has 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 expert reports that clearly explain the basis for [Dr. 

Szumski's] opinion." Decision at 4. That finding satisfies this requirement. The special 

master's decision not to hold an evidentiary hearing was not an abuse of discretion. 

4 The Court reasoned that allowing Ms. Small to supplement her motion for review with an 

entirely new memorandum of objections after the 30-day deadline to file a motion for review had 

passed would effectively extend the time to file a motion for review, contravening the Vaccine 

Rule 23(b)'s prohibition on extensions of time. (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. ST AND ARD OF REVIEW 

Under the Vaccine Act, this Court reviews a special master's decision only to determine 

if it is "'arbitrary, capricious, an abuse of discretion, 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 of statutes and other legal rules anew, without 

deference to the special master. Hines on Behalf of Sevier v. Sec'y of Dep't of 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 master has (I) "considered the relevant evidence of 

record," (2) "drawn plausible inferences," and (3) "articulated a rational basis for the decision."5 

Id. 

Under the 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 not re-examine the probative value of the evidence or a witness's credibility. Id. 

III. DISCUSSION 

In order for a claimant to recover compensation under the Vaccine Act, a vaccine must be 

the substantial cause of the claimant's injury. For vaccines and injuries listed together in the 

Secretary of Health and Human Services' Vaccine Table, the Vaccine Act presumes causation 

upon proof of the injury's onset within the 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 of discretion standard is "ordinarily used where the [decisionmaker] had a finite 

range of discretion (e.g. to select a penalty, or to award a specific sum as damages, from within a 

range of permissible alternatives)." Hines on Behalf a/Sevier v. Sec'y o/Dep't a/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't of Health & Human 

Servs., 970 F.2d 863,870 (Fed. Cir. 1992); Isaac v. Sec'y of the Dep't a/Health & Human Servs., 

I 08 Fed. Cl. 743, 768 (rejecting petitioner's assertion that a special master's factual finding 

could have been an "abuse of discretion" and applying the arbitrary and capricious standard to 

review the finding), afl'd sub nom. Isaac v. Sec'y of Health & Human Servs., 540 F. App'x 999 

(Fed. Cir. 2013). 

6 Ms. Small was not entitled to the presumption of causation 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 her petition, but additions to the vaccine table are not 

retroactive. 42 U.S.C. 300aa-14(c)(4) ("Any modification ... of the Vaccine Injury Table shall 

apply only with respect to petitions for compensation under the Program which are filed after the 

effective date of such 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 

6 
than not (by a "preponderance of the evidence") a substantial cause of her inability to raise her 

arm. 

The Federal Circuit has 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 these three "A/then prongs," requiring Ms. Small to show "(1) a medical theory causally 

connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that 

the vaccination was the reason for the injury; and (3) a showing of a proximate temporal 

relationship between vaccination and injury." Decision at 21 (quoting A/then, 418 F.3d at 1278). 

The special master accepted the medical theory proposed by Ms. Small's neurologist and 

held that she satisfied Althen's first prong. The special master found, however, that Ms. Small 

failed to satisfy the second and third prongs with sufficient proof of the facts Ms. Small's firstprong medical theory required. The special master further considered whether Ms. Small could 

prove the facts to establish causation under a SIRVA-theory, but found that Ms. Small's preexisting spinal condition excluded her symptoms from fitting within the definition of a SIRVA. 

For an off-table injury claim, a petitioner's failure to satisfy any one of the three A/then 

prongs requires the special master to deny relief. Accordingly, the Court reviews the special 

master's holding that Ms. Small failed to satisfy prong two of the A/then test for preponderant 

evidence of vaccine causation. The special master found that there was "not preponderant 

evidence that [Ms. Small] experienced injection-related shoulder pain immediately following her 

vaccination or at any time prior to August 8, 2013." Decision at 23. As long as the special 

master (1) considered the record evidence relevant to whether Ms. Small experienced immediate 

pain after her flu shot and (2) rationally explained how this evidence and any plausible 

inferences the special master drew from it produced his 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 of Direct Nerve Injury 

The expert report of Ms. Small's neurologist, Dr. Szumski, offered the medical theory 

that a flu shot could immediately cause painful nerve damage to a vaccine recipient's arm, that 

such pain could cause disuse of the affected arm, and that such disuse over time could cause a 

limited range of motion in the affected arm. The special master accepted this direct-nerve-injury 

theory as persuasive and held that it satisfied the first A/then prong. Decision at 22. 

A/then prong two requires "proof of a logical sequence of cause and effect, usually 

supported by facts derived from a petitioner's medical records." Decision at 22. Dr. Szumski's 

expert report suggested the following sequence of cause and effect to fit the theory of causation it 

used for prong one and to satisfy prong two: After her flu shot, Ms. Small suffered the 

Table, Delay of Effective Date, 82 Fed. Reg. 11321 (Feb. 22, 2017) (delaying effective date of the 

final rule that added SIRVA until March 21, 2017). 

7 
immediate onset of pain from nerve damage. She disfavored her left arm to avoid the pain. This 

disuse of her left arm then gradually caused Ms. Small to develop a limited range of motion or 

"frozen shoulder." Dr. Szumski relied on a notation from Ms. Small's physical therapist 

suggesting that the provider suspected "frozen shoulder." 

The special master held that Dr. Szumski's report failed to set forth a "logical sequence 

of cause and effect" based on two factual findings: (a) there was "not preponderant evidence that 

petitioner experienced injection-related shoulder pain immediately following her vaccination or 

at any time prior to August 8, 2013," and (b) Ms. Small's one report of immediate postvaccination shoulder pain is "better explained by her [then-]ongoing and preexisting [spinal] 

condition." Decision at 23. 

1. No Immediate Injection-Related Pain 

The records of Ms. Small's three doctor visits over the six months following her flu shot 

include no mention of injection-related pain. From this absence of reported shoulder pain in Ms. 

Small's records, the special master inferred that Ms. Small did not immediately experience 

injection-related shoulder pain. He weighed this inference against claims in the affidavits of Ms. 

Small and her daughter and the opinion of Dr. Szumski that Ms. Small did experience pain 

immediately after the injection. Ultimately, the special master found that the lack of any report 

of vaccine-related pain in Ms. Small's medical records outweighed the affidavits and Dr. 

Szumski' s opinion. 

"It has generally been held that 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), affdwithout opinion, 968 F.2d 1226 (Fed. Cir. 1992). While, "the 

absence of a reference to specific symptoms in a medical record does not conclusively establish 

the absence of symptoms during that time frame," id., medical records deserve some 

presumption of accuracy and completeness because "proper treatment hang[ s] in the balance. "7 

Cucuras v. Sec'y of Dep't of 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 of reports of pain in Ms. Small's medical records was plausible, when viewing the 

record as a whole. The special master did not take the absence of symptoms in Ms. Small's 

records as conclusive, but rather looked to the kinds of visits recorded and the period of time 

over which they occurred in weighing the records' value against the expectation of immediate 

shoulder pain suggested by Ms. Small's affidavit and Dr. Szumski's report. Decision at 16. 

7 A similar theory of the inherent reliability of medical records and of statements made to 

medical providers undergirds the exception to the prohibition on hearsay evidence for statements 

made for medical diagnosis and treatment. See Fed. R. Evid. 803(4). 

8 
The inference was especially plausible considering that the doctor Ms. Small visited was 

effectively her primary-care physician. One of the visits dealt with a similar kind of symptom 

(neck pain) that might have required disclosure of arm pain for proper diagnosis and treatment. 

Indeed, it was during a visit to the same doctor-albeit ten months after the flu shot-that Ms. 

Small first reported injection-related symptoms.8 

Moreover, the special master considered and rationally distinguished decisions from 

other special masters concluding that the timing of the onset of an injury can be proven even 

when records of the injury fall outside of the relevant onset period. See Decision at 18. He 

identified the length of Ms. Small's ten-month delay in reporting injection-related shoulder pain, 

her two general doctor visits in the six months after vaccination, and contemporaneous records 

suggesting that Ms. Small's symptoms are attributable to her pre-existing spinal condition as 

distinguishing facts. Id. 

Indeed, the Court's review of the relevant special master decisions accepting long delays 

in the report of an immediate-onset injury confirms that Ms. Small's non-contemporaneous 

evidence like her eventual report of shoulder pain to her doctor and her daughter's affidavit were 

even more delayed and lacked the specificity of the non-contemporaneous evidence credited in 

other cases. 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) (unpublished) (four-month delay, but with 

testimony of petitioner's office manager, who testified that he had to help petitioner remove her 

jacket the 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 of the vaccination and overall pattern of treatment 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 weight to 

the portions of the doctor-visit records that the special master characterized as a "review of 

symptoms" or "musculoskeletal physical exam" that was "negative for myalgias and joint pain," 

reflected a "[n]ormal range of motion," and no swelling ("edema"). Decision at 8. A footnote in 

the special master's decision discloses that these "findings appear verbatim across a number of 

encounters even when they appear inconsistent with Dr. Elad's more detailed notations." The 

special master's footnote failed to note specifically that the record of the visit at which Ms. Small 

actually reported shoulder pain and the inability to raise her arm still includes the text "negative 

for myalgias and joint pain" and "[n]ormal range of motion" under the record's "Review of 

Systems" and "Physical Exam." (See Ex. 2 at 5, 7.) The first change to these checklist-like 

sections of Ms. Small's medical records does not appear until a late-2014 visit when the doctor 

notes a thyroid cyst. (Id. at 3, 7, 11, 15, 19, 49, 53, 57.) Nevertheless, considering the absence 

of shoulder pain in the substantive portions of the records, it was not unreasonable for the special 

master to consider these records as evidence that Ms. Small did not immediately experience 

shoulder pain from the flu shot. 

9 
2865490 (Fed. Cl. Apr. 24, 2019) (six-month delay, but with affidavit from doctor who 

remembered petitioner's immediate complaints of pain). 

It was reasonable for the special master to 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 "a few months after the vaccine" to complain about her shoulder pain. 

(Ex. 15 at 2.) The special master found this recollection inconsistent with the previouslydiscussed lack of any mention of shoulder pain in the records of Ms. Small's doctor visits in the 

months after the flu shot. Decision at 17. That Ms. Small sought primary care twice during that 

period, the special master concluded, contradicted Ms. Small's explanation for her delay in 

seeking care for the alleged injection-related pain. Id. Finally, the special master noted that Ms. 

Small's affidavit did not address how Ms. Small was affected by her spinal condition after her 

flu shot. Id. 

The special master declined to credit the affidavit of Ms. Small's daughter claiming that 

she observed Ms. Small suffering from shoulder pain after the flu shot because the affidavit 

never specified a timeframe within the 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 of Ms. Small's eventual inability to raise her rum-first treated 

by Dr. 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 of her condition at and following the time of vaccination. Id. Dr. 

Szumski never actually observed or treated 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 of Dr. Szumski's expertise as a neurologist. Id. 

The special master considered that Dr. Szumski treated Ms. Small, but found the normal 

deference to the findings of treating physicians unwarranted because Dr. Szumski "'only saw the 

patient after the injury and based his opinion on the srune evidence as relied upon by the retained 

experts."' Decision at 23-24 ( quoting Nuttall 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 observation that neither Dr. 

Szumski' s treatment records nor his later expert reports indicate that he considered or was even 

aware of Ms. Small's pre-vaccination spinal condition and reports of neck pain radiating into her 

upper extremities. Decision at 16. It was not e1Tor for the special master to reject an expert 

opinion that failed to address a pre-existing condition that-even from a lay review of Ms. 

Small's medical records-was a possible source of the symptoms Ms. Small attributes to the flu 

shot. 

Without proof of a distinct injury following the shot, the special master found no logical 

sequence of events that demonstrated the petitioner's direct nerve injury theory of causation 

10 
under A/then prong two. 9 Having failed to meet the second of the A/then prongs, 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-shoulder pain. The special master analyzed the meaning of 

"radicular" in the context of shoulder pain and concluded that it referred to the inflammation or 

impingement of nerve roots, possibly by a bony spur, a condition that could cause neck or 

shoulder pain. 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-shoulder pain described in Ms. Small's next-day 

physical therapy evaluation was most likely caused by her pre-existing spinal condition, which 

was documented to have caused pain radiating into her arms. It was rational for the special 

master to consider the physical therapist's use of the term "radicular" as evidence that the left 

shoulder pain was caused by Ms. Small's pre-existing spinal condition and was not injectionrelated. 

Although Ms. Small was seeking physical therapy for her spinal condition and nothing in 

the record indicates that the physical therapist knew of Ms. Small's recent flu shot, the physical 

therapist was on notice to consider alternate causes of Ms. Small's pain. The evaluation record 

shows that Ms. Small suggested a "strain" from lifting her husband as the cause of her pain, 

rather than her recently-diagnosed spinal condition or the flu shot. (Ex. 5 at 16.) Despite this 

suggestion from Ms. Small, the provider still characterized the shoulder pain as "radicular." This 

professional's contemporaneous use of the technical term "radicular" on a record presumably 

made primarily for reference by her and other professionals, even ifrecording the patient's selfreport of symptoms, implicates the professional' s judgment that a term like "radicular" applies to 

the pain the patient is describing. The physical therapist could have omitted "radicular" 

altogether or used a broader descriptor if she had doubts about the cause of Ms. Small's left 

shoulder pain. The special master's conclusion that Ms. Small's next-day left-shoulder pain was 

not evidence of a direct-nerve injury but was more likely caused by her spinal condition, was 

rational. 

B. SIRVA Criteria 

The Court finds no error in the special master's conclusion that Ms. Small could not 

prove the musculoskeletal SIRVA injury she alleged in her petition as an alternative to her 

neurologist's theory of direct nerve injury. "SIRVA is a specific concept by which some 

musculoskeletal injuries temporally associated to vaccination are deemed to have been vaccine 

caused where they meet certain criteria that rule out other causes." Decision at 22 (emphasis 

9 Without proof of a distinct injury, the special master could not judge whether the 

vaccination and injury were close enough in time to each other to infer a cause and effect 

relationship under Althen's prong three. 

11 
added). The SIRVA concept has been used as a theory of causation 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 of conceding 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 master that Ms. Small's pre-existing spinal conditiondocumented to cause pain in her upper arms-is a "condition or abnormality [] present that 

would explain the vaccine recipient's symptoms." 42 C.F.R. § 100.3(10)(iv) (listing exclusions 

from the definition of a SIRVA). With the fact of Ms. Small's pre-existing spinal condition 

definitionally excluding her symptoms from fitting within the SIRVA-injury concept, Ms. Small 

could show no other facts under Althen's second prong that would demonstrate a logical 

sequence of cause and effect consistent with a SIRVA theory of causation. 

IV. CONCLUSION 

Failing to show the existence of either the direct nerve injury or SIRVA that she alleged 

that her flu shot caused, Ms. Small failed to prove that a vaccine caused her injury under A/then. 

The special master considered the evidence relevant to this finding and explained his reasons for 

crediting or discounting 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 final judgment accordingly. Each side will bear its own costs. 

It is so ORDERED. 

/k,,j A . JI~ 

Richard A. Hertling 

Judge 

12