In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                  Filed: September 30, 2020

* * * * * * * * * * * * * * *
GARLAND RUCKER,               *                      PUBLISHED
                              *
          Petitioner,         *                      No. 19-204V
                              *
v.                            *                      Special Master Nora Beth Dorsey
                              *
SECRETARY OF HEALTH           *                      Fact Ruling; Onset; Influenza (“Flu”)
AND HUMAN SERVICES,           *                      Vaccine; Transverse Myelitis (“TM”).
                              *
          Respondent.         *
                              *
* * * * * * * * * * * * * * *

Lawrence Gene Michel, Kennedy, Berkley, et al., Salina, KS, for petitioner.
Althea W. Davis, U.S. Department of Justice, Washington, DC, for respondent.

                                        FACT RULING1

         On February 5, 2019, Garland Rucker (“petitioner” or “Mr. Rucker”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10,
et seq.,2 (“Vaccine Act” or “the Program”). Petitioner alleges that he suffered transverse myelitis
(“TM”) after receiving an October 18, 2016 influenza (“flu”) vaccination. Petition at Preamble
(ECF No. 1). Respondent, however, asserts that onset of petitioner’s alleged injury began prior
to administration of his flu vaccine. Respondent’s Report (“Resp. Rept.”) at 23 (ECF No. 44).
Subsequently, the parties discussed the issue of onset, and petitioner requested a fact hearing to

1
  Because this Ruling contains a reasoned explanation for the action in this case, the 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). 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.
2
 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this Ruling to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
resolve the question. Order dated May 20, 2020, at 1-2 (ECF No. 45). A fact hearing was held
on August 6, 2020. Transcript (“Tr.”) 1.

        After reviewing all of the evidence, and considering the testimony given by the petitioner
and his wife, Georgia Rucker, at the hearing, and for the reasons discussed below, the
undersigned finds that onset of petitioner’s numbness from his abdomen to his legs began in
September 2016, before the flu vaccine administered to him on October 18, 2016.

I.     PROCEDURAL HISTORY

        Along with his petition, petitioner submitted medical records and his affidavit on
February 5, 2019. Petitioner’s Exhibits (“Pet. Exs.”) 1-5. Over the course of the next 14
months, petitioner filed additional medical records. Pet. Exs. 6-21. On May 8, 2020, respondent
filed his Rule 4(c) Report, stating that the case was not appropriate for compensation, based in
part on his belief that onset of petitioner’s numbness, the initial manifestation of his neurological
condition, began before petitioner received the October 18, 2016 flu vaccination at issue. Resp.
Rept. at 23. Specifically, respondent stated that petitioner complained of leg numbness and
tingling on October 15, 2016 and numbness in the epigastric area on October 17, 2016.

Respondent noted that on October 28, 2016, petitioner gave a history of numbness in his thighs
that began a month before, after petitioner lifted a large object.

medical record entries that referenced similar histories reported by petitioner.

conference held on May 20, 2020, the parties discussed how they would
like to proceed in this case. Order dated May 20, 2020, at 1-2. The petitioner requested the
opportunity to present testimony about onset in a fact hearing.

The fact hearing was
held by video conference on August 6, 2020. Tr. 1. The petitioner and his wife, Georgia
Rucker, testified. Tr. 3.

       The factual issue regarding onset is now ripe for adjudication.

II.    FACTUAL HISTORY

       A.      Summary of Medical Records Related to Onset

        Petitioner has a complicated medical history and has filed many medical records
documenting his medical care and treatment, including treatment of conditions which are not
related to his vaccine injury claim. For purposes of clarity, the undersigned provides a summary
of entries in the petitioner’s medical records which relate only to onset of his symptoms of
abdominal numbness and numbness of his legs and/or tingling or paresthesias.3 Thus, references
to low back pain, sciatica, knee pain, and symptoms of other conditions which petitioner
received care for during the time frame of 2015 to 2019 are not discussed here.




3
  The undersigned has reviewed all of the petitioner’s medical records, but only summarizes
those pertinent to onset. For a more thorough summary of the records, see Resp. Rept. at 2-15.
                                                  2
        On October 15, 2016, petitioner, then age seventy-one, presented to the Herington
Municipal Hospital (“Herington”) Emergency Room (“ER”) complaining of right leg numbness
and tingling for the past two days. Pet. Ex. 19-C at 1106. Petitioner was diagnosed with right
leg edema and discharged in stable condition.

2016, petitioner presented to the Herington ER for complaints of
hematuria and history of right leg deep vein thrombosis. Pet. Ex. 19-C at 1113. Documenting
the history of present illness, Marcy L. Evans, PA-C, wrote, “[t]oday [complains of] numbness to
epigastric area” and abdominal discomfort.

CT scans, showed
a large left lower lobe pulmonary embolus and kidney stone.

       That same day, October 17, 2016, petitioner was transferred to Salina Regional Health
Center (“SRHC”) for treatment. Pet. Ex. 9 at 302. In his admitting history and physical, Dr.
Seth Vernon charted that petitioner had presented to Herington “earlier in the day of admission
with complaints of abdominal numbness.”

receiving treatment for his pulmonary embolus, petitioner received the
flu vaccination at issue here on October 18, 2016. Pet. Ex. 13-C at 653, 701; Pet. Ex. 15 at 400.
Petitioner was discharged from SRHC on October 21, 2016. Pet. Ex. 4 at 152-53.

         Petitioner saw Dr. Eric Wolfe on October 28, 2016 at the Herington Area Health Clinic.
Pet. Ex. 19-C at 1129. Petitioner’s chief complaint was “[n]umbness in stomach/thighs/sick at
stomach x 1 month- shaking, weak.”

or numbness to
abdomen, lowest rib cage and downward. Legs more pronounced in AM. Started 1 month ago
after lifting large fan out of truck. . . . Most mornings [his] legs [feel] weak, feels shaky, felt like
walking like crab.”

not reveal any focal neurological deficits.

Dr. Wolfe ordered diagnosed tests, referred petitioner to Dr. Paul Johnson (GI
physician), and instructed petitioner to return if his condition worsened.

saw petitioner on January 25, 2017, again complaining of “[n]umbness in
the stomach, as well as legs and toes.” Pet. Ex. 9 at 294. Dr. Wolfe wrote that petitioner had
similar symptoms back on October 28, 2016.

Dr. Johnson and had
undergone diagnostic tests which showed “erosions of the esophagus” and “benign polyps.”

in his abdomen, petitioner also reported “pain and numbness in his bilateral
inner legs down into [his] feet and to his toes.”

“the symptoms in his
legs[] initially started around the end of September, after he was lifting a large fan out of his
truck, resting it on his thighs.”

laboratory studies and additional
diagnostic tests and referred petitioner to Dr. Davis, a neurologist.

        In April 2017, petitioner had treatment for right foot pain. Pet. Ex. 19-D at 1153; Pet. Ex.
5 at 249. At a follow up appointment for his right foot pain with Dr. John Mosier on April 27,
2017, petitioner repeated his history of “numbness in his legs and lower abdomen” that “started
approximately September or October last year.” Pet. Ex. 5 at 202. Dr. Mosier referred petitioner
to Dr. William D. Kossow for nerve conduction studies.

noted that
petitioner had an appointment to see a neurosurgeon, Dr. Scott M. Boswell.

        Petitioner saw Dr. Kossow on May 1, 2017. Pet. Ex. 2 at 4. Dr. Kossow’s history states
that petitioner presented with “constant tingling numbness in the bilateral feet and legs,
especially in the inner thighs and groin. Also feels numb on lower abdomen.”

abdominal numbness started in Aug[ust] 2015 after lifting.”

that petitioner had a “[g]radual onset” and that duration of the condition was “1.5 years.”

Rebecca Loomis, PA-C, in Dr. Boswell’s office, on May 16, 2017.
Pet. Ex. 11 at 323. Ms. Loomis documented that petitioner had a “6 month history of right-sided
low back pain” after lifting “2 heavy warehouse fans.”

Petitioner also reported a
“constant numbness ‘like a band’ around his mid abdomen, groin[,] and medial thighs to the
knees bilaterally and into the balls of his feet. He feels his legs are weak.”

documented the onset of petitioner’s low back pain, she did not specifically document
the onset of his abdominal numbness.

        An MRI of petitioner’s thoracic spine was performed on May 22, 2017, which showed a
“subtle abnormal cord signal in the thoracic cord at about the T2/T3 level.” Pet. Ex. 19-D at
1172. Petitioner saw Ms. Loomis the next day, May 23, 2017. Pet. Ex. 16-A at 835. Ms.
Loomis reviewed the MRIs with Dr. Boswell, and documented that they showed “mild
degenerative changes” but no surgery was recommended.

Ms. Loomis’ note
regarding petitioner’s MRI does not specifically reference the abnormal thoracic cord signal at
T2/T3. See

see Ms. Loomis on July 11, 2017. Pet. Ex. 16-A at 839. At this
visit, Ms. Loomis’ note focuses on petitioner’s low back pain and his treatment for that problem
with a chiropractor.

         On March 8, 2018, petitioner saw neurologist, Dr. Norman I. Bamber, after referral from
Dr. Mosier. Pet. Ex. 3 at 19. Petitioner reported “numbness [from] the middle of his chest down
to his toes,” which had been “[g]oing on for about two years.”

he
“first noted these symptoms after unloading some large objects which he bought from a store.”

that he had complained of numbness previously.

he was having “difficulty walking,” and “fe[lt] that his legs no longer ‘hold him up.’”

“very numb sensation anteriorly at the bottom of his sternum with a ‘less numb’
sensation in the abdomen and pelvis” as well as “numbness in his legs from the feet up until the
anterior medial thigh . . . [with] burning/tingling in his feet bilaterally.”

the May 22, 2017 MRI and commented that it showed an increased signal of the spinal
cord at T2-T3.

Dr. Bamber ordered a repeat MRI of the thoracic spine, which was
done on March 8, 2018.

The findings were similar to the prior MRI; as there
“continues to be a signal abnormality in the spinal cord centered at T3-T4” with “subtle
enhancement.”

        Dr. Bamber referred petitioner to neurologist Dr. Kimberly Cochran, and she saw
petitioner on March 15, 2018. Pet. Ex. 3 at 38-39. Dr. Cochran documented petitioner’s history
as follows: “The patient’s symptoms started [two] years ago. He has numbness in the middle of
his chest down to his toes. He felt it was of acute onset after lifting some large awkward objects

                                                4
which weren’t necessarily heavy. He feels his symptoms have been progressive.”

Dr.
Cochran diagnosed petitioner with idiopathic TM, and ordered additional diagnostic studies to
rule out multiple sclerosis.

        Petitioner saw Dr. Cochran again on May 1, 2018 for follow up after the additional
testing. Pet. Ex. 3 at 34-35. At this visit, Dr. Cochran’s history states that, “[t]he patient’s
symptoms started around March 2016.”

After reviewing his history and diagnostic
testing, Dr. Cochran concluded that petitioner most likely had “idiopathic [TM]” and that his
condition was stable.

        Moving forward, petitioner saw neurologist Dr. Yasir Jassam at the University of Kansas
Department of Neurology (“Kansas Neurology”) on August 15, 2018. Pet. Ex. 16A at 786. Dr.
Jassam noted that petitioner’s “symptoms started in late 2016.”

Petitioner returned to
Kansas Neurology for a follow up appointment on November 7, 2018, and saw Dr. Amanda
Thuringer.

Dr. Thuringer’s history stated that petitioner “developed progressive
numbness, paresthesias[,] and weakness to [his] trunk over the course of several months
beginning in November 2016.”

Dr. Jassam and Dr. Thuringer next saw petitioner on
April 25, 2019. Pet. Ex. 7 at 264. Dr. Thuringer repeated the prior history, specifically that
petitioner’s symptoms began in November 2016.

Dr. Thuringer noted that
petitioner’s TM was

        somewhat chronic progressive in onset with persistent enhancement (Nov 2016 to
        April 2018). There is a temporal association with [flu] vaccine. So far, extensive
        workup has been unrevealing for cause. Neurosarcoidosis remains possible, but
        no supportive evidence so far. MRI 11/2018 showed resolution of enhancement
        and improvement of T2 hyperintensity. There is no evidence of recurrence on
        exam.

       The last reference to onset in petitioner’s medical records appears on September 7, 2019,
by Dr. Gregory Erb, who petitioner saw for knee pain. Pet. Ex. 20 at 1214. Dr. Erb wrote, “[p]er
Dr. Yasir Jassam’s clinical note patient started experiencing symptoms [of TM] around March
2016, starting with numbness in the middle of chest down to his toes.”

Hearing Testimony

               1.      Petitioner’s Affidavit and Hearing Testimony

     In his affidavit, petitioner states that he developed “pressure around [his] solar plexus and
numbness and tingling in [his] legs, abdominal area, and chest” by “late October or early
November [] 2016,” after he received the flu vaccine. Pet. Ex. 1 at ¶ 3.

       At the hearing, petitioner testified that “[he] was in good health” in October 2016. Tr. 11.
He explained that in November 2016, he began to experience weakness and numbness below the
knee in both legs. Tr. 12. He recalls these symptoms began “within two or three weeks” after

                                                 5
his trip to Silver Dollar City in Missouri on Veteran’s day in November 2016. Tr. 13. He
testified that he first saw a doctor about these symptoms on January 25, 2017 when he saw Dr.
Wolfe. Tr. 14-15. Petitioner did not recall what Dr. Wolfe recommended for further treatment
or testing, nor did he recall whether an MRI was performed. Tr. 15. Petitioner also did not
recall what medical treatment he received after a February 2017 MRI. Tr. 16.

        Next, petitioner was questioned about a visit to Kansas Neurology in April 2019. Tr. 17.
He agreed with the physician’s summary that stated he “developed progressive numbness,
paresthesias[,] and weakness to the trunk over the course of several months, beginning in
November of 2016.”

7 at 264). Petitioner was then questioned about a May
2017 visit with a chiropractor, where petitioner’s chiropractor wrote “[p]atient stated that the
pain came on back last November [2016] . . . from lifting something at home.” Tr. 18-19
(quoting Pet. Ex. 12 at 332). Petitioner testified that he “[did not] remember when the onset of
that pain was” but attributed the pain to sciatica. Tr. 19.

        When asked about his visit to Salina Regional Neurosurgery in May 2017, he could not
recall whether he reported any numbness to his neurologist. Tr. 20.

        On cross-examination, petitioner agreed that prior to the vaccination at issue here, he had
GERD, hypertension, and a history of kidney stones and deep vein thrombosis. Tr. 23-24. He
did not recall when he was first diagnosed with deep vein thrombosis, and explained “time gets
away from [him].” Tr. 23. Petitioner also did not recall visits to Herington ER on October 2,
2016, where he complained of abdominal bloating and epigastric pain, and on October 15, 2016,
where he complained of right leg numbness and tingling for two days. Tr. 26.

        When cross examined about his ER visit on October 17, 2016, petitioner did “[n]ot
specifically” recall the visit. Tr. 27-28. Petitioner also did not recall visits with Dr. Wolfe on
October 28, 2016 and January 25, 2017. Tr. 30-32. He testified that he would not disagree with
Dr. Wolfe’s records from these visits noting his numbness began in September 2016 after lifting
a fan. See Tr. 31-32.

        Next, petitioner was cross examined about a visit on April 27, 2017, which he could not
recall. Tr. 32-33. Although petitioner remembered seeing Dr. Kossow on May 1, 2017 for a
nerve conduction study, he did not remember complaining of constant tingling and numbness in
the bilateral feet and legs since August 2016. Tr. 33.

        Additionally, petitioner could not recall what he wrote in his affidavit regarding onset of
his symptoms. Tr. 33-34. He testified that he believes his vaccine-related symptoms began
“toward the end of November, first part of December of [2016],” even though his affidavit states
onset of his symptoms was in late October or early November 2016. Tr. 34-35. These
symptoms included numbness and pressure around his stomach described as a band that keeps
tightening, knots in his stomach and back, numbness in feet, weakness in legs, and trouble
walking and standing.

recall when he first complained of the feeling of a band
around his stomach to a doctor, or when he first associated his November or December 2016
symptoms with his vaccination. Tr. 36. He admitted that when he brought up the association



                                                 6
between his vaccination and symptoms to his doctors, they “seemed to be reluctant to admit that
there was any connection with vaccines” until “[he] finally got one to admit” the connection.

he is “sure [his memory of events in 2016 and 2017 was] better
than it is now.” Tr. 37. He explained that he has seen so many doctors and had so many tests
that “it all runs together.”

his symptoms have not gotten worse, but they are about the same and
have not gotten better. Tr. 38. “The band . . . seems tighter than it used to . . . . [He] can’t walk
very far. [He] can’t stand very long.” Tr. 38-39. He also has problems driving his farm
equipment with standard transmission. Tr. 39, 43-44.

         On redirect, petitioner testified that he does not recall having numbness and tingling in
his legs from his deep vein thrombosis. Tr. 42. Regarding his sciatica, the pain was so
“horrible” that he only focused on the pain, but numbness and weakness in his legs continued
after he no longer had sciatica pain.

the symptoms he experienced when
lifting the fan were “more of a bruise or strain,” which is “nothing” like his current symptoms.
Tr. 42-43.

               2.      Affidavit and Hearing Testimony of Petitioner’s Wife, Georgia
                       Rucker

       During the hearing, Ms. Rucker testified that petitioner “was in really good shape”
around October 2016. Tr. 47. Petitioner did not complain or indicate that he was experiencing
any numbness or weakness in his legs prior to October 2016. Tr. 47-48.

       In her affidavit, Ms. Rucker avers that she and her husband traveled to Branson,
Missouri, on Veterans Day (November 11) 2016, and that her husband had “no problems”
walking. Pet. Ex. 22 at ¶ 4. Additionally, she stated that “[h]e still did not seem to have any
symptoms.”

During the hearing, Ms. Rucker reiterated that petitioner had no
problems walking during this trip. Tr. 48.

        Ms. Rucker testified that “within the next week and a half” petitioner “told [her] that his
legs just felt very numb, that he didn’t really feel his feet.” Tr. 48-49. While they were watering
cattle across from their house, he described the pain as “a band around [his] abdomen, like
somebody has a belt and they are tightening it down.” Tr. 49. He also began to stumble.

time in December 2016 when her husband “felt like he had a belt around his
lower chest.” Pet. Ex. 22 at ¶ 7. Shortly after this, she stated that her husband “began to stumble
and even fall because . . . his feet [] felt numb.”

       Ms. Rucker also recalled an incident when they were having fences built on their
property, and while walking the perimeter of their property, petitioner “face planted.” Tr. 54.




                                                  7
Ms. Rucker testified that she could not recall when that event occurred, but knew “it was in the
fall.”4

the references in the medical records to moving a fan or fans, Ms. Rucker
testified that she purchased the heavy fans in the fall of 2016.5 Tr. 54. Petitioner was “supposed
to wait for [his] sons to help him unload them, and he didn’t.” Tr. 54-55. Ms. Rucker thought
that based on her husband’s description of his symptoms, that “it sounded . . . more like it was a
strain in the groin [] than anything.” Tr. 55. She added that “when he saw doctors, he kept
trying to link [his symptoms] to [the fans] because that’s the only thing he did that he could . . .
link to what was going on. He thought maybe he hurt his back . . . , because [they] didn’t know
about [TM] and flu shots.”

that petitioner’s symptoms have not changed since November 2016,
and “if anything, the pressure in [his] abdomen has gotten worse. His legs are still weak. He
can’t stand very long. He can’t get his breath. . . . [T]he numbness in his feet is still there, and
the weakness in his legs [is] still there.” Tr. 51-52.

        On cross, Ms. Rucker testified that after her trip to Branson, Missouri with Mr. Rucker,
she noticed “he would stumble” and “complain[] that his legs felt weak.” Tr. 63. When
questioned about when this first occurred, Ms. Rucker stated she did not know the exact date, but
“[she] just know[s] it would have been the latter part of November into December” 2016. Tr. 64.

       C.      Post-hearing Evidence

         There was testimony during the August 6, 2020 hearing regarding the association in time
between petitioner moving heavy fans and the onset of his symptoms. Additionally, Ms. Rucker
testified about a fall that occurred on the farm in 2016. Order dated Aug. 6, 2020 (ECF No. 50).
After the hearing, petitioner was ordered to file documentation showing the date petitioner
purchased the fans and evidence of the date of the fall described by Ms. Rucker.

2020, petitioner filed documents, showing that petitioner purchased the
fans on September 30, 2016.6 Pet. Ex. A. Petitioner also filed screenshots of conversations



4
 Based on a review of the screen shots dated December 4, 2017, and the testimony of Ms.
Rucker, the fall referenced by Ms. Rucker occurred sometime after December 4, 2017. See Pet.
Exs. B-C. This fall occurred more than a year after Ms. Rucker described in her testimony, and
more than a year after the onset of petitioner symptoms. Therefore, the undersigned finds this
evidence is not relevant in resolving onset.
5
 Based on documentation filed after the hearing, the fans were purchased on September 30,
2016. See Pet. Ex. A.
6
  While the date of the check is difficult to read, it appears to be September 20, 29, or 30. In the
filing, petitioner referred to September 30 as the date on the check, so that is the date that the
undersigned has used.
                                                  8
dated December 4, 2017, in support of Ms. Rucker’s testimony that petitioner fell when they
were having their fences built. Pet. Exs. B-C; see also Tr. 54.

III.   LAW GOVERNING ANALYSIS OF FACTUAL EVIDENCE

        The process for making determinations in Vaccine Program cases regarding factual issues
begins with consideration of the medical records. § 11(c)(2). The special master is required to
consider “all [] relevant medical and scientific evidence contained in the record,” including “any
diagnosis, conclusion, medical judgment, or autopsy or coroner’s report which is contained in the
record regarding the nature, causation, and aggravation of the petitioner’s illness, disability,
injury, condition, or death,” as well as “the results of any diagnostic or evaluative test which are
contained in the record and the summaries and conclusions.” § 13(b)(1)(A). The special master
is then required to weigh the evidence presented, including contemporaneous medical records
and testimony. See Burns v. Sec’y of Health & Hum. Servs., 

, 417 (Fed. Cir. 1993)
(noting it is within the special master’s discretion to determine whether to afford greater weight
to contemporaneous medical records than to other evidence, such as oral testimony surrounding
the events in question that was given at a later date, provided that such a determination is
evidenced by a rational determination).

        Medical records that are created contemporaneously with the events they describe are
presumed to be accurate and “complete” (i.e., presenting all relevant information on a patient’s
health problems). Cucuras v. Sec’y of Health & Hum. Servs., 

, 1528 (Fed. Cir.
1993); Doe/70 v. Sec’y of Health & Hum. Servs., 

, 608 (2010) (“Given the
inconsistencies between petitioner’s testimony and his contemporaneous medical records, the
special master’s decision to rely on petitioner’s medical records was rational and consistent with
applicable law.”); Rickett v. Sec’y of Health & Hum. Servs., 468 F. App’x 952 (Fed. Cir. 2011)
(non-precedential opinion). This presumption is based on the linked propositions that (i) sick
people visit medical professionals; (ii) sick people honestly report their health problems to those
professionals; and (iii) medical professionals record what they are told or observe when
examining their patients in as accurate a manner as possible, so that they are aware of enough
relevant facts to make appropriate treatment decisions. Sanchez v. Sec’y of Health & Hum.
Servs., No. 11-685V, 

, at *2 (Fed. Cl. Spec. Mstr. Apr. 10, 2013), vacated on
other grounds, 809 F. App’x 843 (Fed. Cir. 2020); Cucuras v. Sec’y of Health & Hum. Servs., 

, 543 (1992), aff’d, 

(Fed. Cir. 1993).

         Accordingly, if the medical records are clear, consistent, and complete, then they should
be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-1585V, 

, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneous medical
records are generally found to be deserving of greater evidentiary weight than oral testimony—
especially where such testimony conflicts with the record evidence. 

;
see also Murphy v. Sec’y of Health & Hum. Servs., 

, 733 (1991) (“It has generally
been held that oral testimony which is in conflict with contemporaneous documents is entitled to
little evidentiary weight.” (citing United States v. U.S. Gypsum Co., 

, 396 (1947))),
aff’d, 

(Fed. Cir. 1992).




                                                 9
        However, there are situations in which compelling oral testimony may be more
persuasive than written records, such as where records are deemed to be incomplete or
inaccurate. Campbell v. Sec’y of Health & Hum. Servs., 

, 779 (2006) (“[L]ike
any norm based upon common sense and experience, this rule should not be treated as an
absolute and must yield where the factual predicates for its application are weak or lacking.”);
Lowrie, 

, at *19 (“Written records which are, themselves, inconsistent, should
be accorded less deference than those which are internally consistent.” (quoting Murphy, 23 Cl.
Ct. at 733)). Ultimately, a determination regarding a witness’s credibility is needed when
determining the weight that such testimony should be afforded. Andreu v. Sec’y of Health &
Hum. Servs., 

, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum. Servs.,

, 1575 (Fed. Cir. 1993).

IV.    FINDING OF FACT

        The issue to be resolved is the onset of petitioner’s neurological condition. 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, 

, 371 (1970)
(Harlan, J., concurring). In light of the medical record evidence and for the reasons described
below, the undersigned finds that there is preponderant evidence that the onset of petitioner’s
abdominal numbness occurred prior to his October 18, 2016 flu vaccination.

        In the contemporaneous medical records of October 2016, the history that petitioner
consistently reported to his health care providers placed the onset of his abdominal numbness to
a time frame prior to the date of his vaccination. The first time petitioner sought medical
treatment for his abdominal numbness was October 17, 2016, the day before vaccination. On
October 17, Marcy Evans, PA-C, wrote, “[t]oday [] numbness to epigastric area.” Pet. Ex. 19-C
at 1113. Although it is not clear from this note when the numbness began or the length of its
duration, it is clear that petitioner had abdominal numbness on October 17. When transferred
from Herington to SRHC on October 17, petitioner was evaluated by a physician, Dr. Vernon,
who also noted that petitioner had complained of abdominal numbness when he presented to the
hospital.

        Eleven days later, on October 28, 2016, petitioner was seen by Dr. Wolfe, who
documented a more detailed history. Dr. Wolfe charted that petitioner had numbness of the
abdomen down to his legs that “[s]tarted 1 month ago after lifting large fan out of truck.” Pet.
Ex. 19-C at 1129. This is the first note that provides information about how long petitioner had
been experiencing abdominal numbness. It also provides more details about the numbness,
specifically that it extended from the petitioner’s abdomen down to his legs. Also, Dr. Wolfe’s
records note petitioner places the onset in context with an event—after he lifted a large fan—
which occurred around September 30, 2016.

        Thus, in the period of one month, three different health care providers (at three different
locations) took a history from the petitioner, and all of them placed the onset of petitioner’s
abdominal numbness to a date prior to his receipt of the flu vaccine. The most specific record



                                                 10
places onset of petitioner’s abdominal numbness to one month before October 28, 2016, which
would be consistent with onset after petitioner lifted the heavy fans on September 30, 2016.

        In 2017, there are three more entries in petitioner’s medical records that place onset of his
abdominal numbness as occurring prior to vaccination. On January 25, 2017, Dr. Wolfe again
charted that petitioner’s abdominal numbness started the prior September. On April 27, 2017,
Dr. Mosier documented that the petitioner’s numbness started “September or October last year.”
Pet. Ex. 5 at 202. On May 1, 2017, Dr. Kossow stated that onset was August 2016. Again, all of
these records consistently place onset prior to vaccination.

        Ms. Loomis saw petitioner in May 2017, and she references the onset of petitioner’s low
back pain, but her note is ambiguous as to onset of petitioner’s numbness. Moving forward to
March 2018, Dr. Bamber states that petitioner has had numbness for two years, which places
onset in March 2016. This is far earlier than noted in all of the other records, but certainly before
petitioner received the flu vaccine.

         Medical records generally “warrant consideration as trustworthy evidence.” 

. However, greater weight is typically given to contemporaneous records.
Vergara v. Sec’y of Health & Hum. Servs., No. 08-882V, 

, at *4 (Fed. Cl.
Spec. Mstr. May 15, 2014) (“Special Masters frequently accord more weight to
contemporaneously-recorded medical symptoms than those recorded in later medical histories,
affidavits, or trial testimony.”). In this case, the undersigned finds that the earlier-in-time records
consistently place the onset of petitioner’s numbness to approximately September 2016, prior to
vaccination. The fact that the records were documented by different health care providers adds
reliability to the finding.

       Further, the most specific evidence is the proof of purchase of the heavy fans on
September 30, 2016. This is the date that petitioner references most often in the
contemporaneous medical records as the event that occurred just before the onset of his
problems.

       The weight afforded to contemporaneous records is due to the fact that they “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.”

. That is exactly the context in which the above-described medical
records discussed the onset of petitioner’s numbness from his abdomen to his legs.

        The undersigned finds petitioner’s sworn statement and hearing testimony is inconsistent
with the contemporaneous records. During the hearing, petitioner and Ms. Rucker could not
recall exactly when they bought the large fans referred to in most of petitioner’s medical records.
Post-hearing evidence showed the fans were bought on September 30, 2016, which is consistent
with the contemporaneous medical records and supports an onset prior to vaccination.

        Petitioner presented two time periods for onset. In his affidavit, he averred his onset was
in late October or early November 2016; however, he testified at the hearing that his onset was in



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late November or early December 2016. As stated above, the undersigned finds petitioner’s
medical records place petitioner’s onset prior to vaccination in September 2016.

        Moreover, at the hearing, petitioner consistently could not recall visits to physicians or
the reports he gave to these physicians, nor could petitioner recall what his affidavit stated
regarding the onset of his symptoms. Petitioner admitted that “time gets away from [him]” and
that “[he is] terrible with dates.” Tr. 21, 23.

        The undersigned finds petitioner’s affidavit and testimony inconsistent with and
contradicted by the contemporaneous medical records, and thus, finds it reasonable to give
greater weight to the contemporaneous medical records. See 

(noting
that “the Supreme Court counsels that oral testimony in conflict with contemporaneous
documentary evidence deserves little weight”); 

; Stevens v. Sec’y of
Health & Hum. Servs., No. 90-221V, 

, at *3 (Cl. Ct. Spec. Mstr. Dec. 21, 1990)
(noting that “clear, cogent, and consistent testimony can overcome such missing or contradictory
medical records”).

V.     CONCLUSION

        For all the foregoing reasons, the undersigned finds that there is preponderant evidence
that the onset of petitioner’s numbness from his abdomen to his legs began soon after September
30, 2016, before he presented to a health care provider complaining of right leg numbness and
tingling for two days on October 15, 2016, and before he presented to the ER with numbness to
the epigastric area on October 17, 2016. Therefore, the onset of petitioner’s symptoms occurred
before the administration of his flu vaccine on October 18, 2016.

       The petitioner shall review this Ruling and advise the undersigned as to how he wishes to
proceed within 30 days, or no later than Friday, October 30, 2020.

       IT IS SO ORDERED.

                                      s/Nora Beth Dorsey
                                      Nora Beth Dorsey
                                      Special Master




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