In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 17-0010v
                                     Filed: November 6, 2019

    * * * * * * * * * * * * *                  *    *
    ROGER LAMARRE,                                  *       PUBLISHED
                                                    *
                 Petitioner,                        *
    v.                                              *       Dismissal; Influenza Vaccination; SIRVA;
                                                    *       Severity Requirement; Motion for a Ruling
    SECRETARY OF HEALTH                             *       on the Record
    AND HUMAN SERVICES,                             *
                                                    *
             Respondent.                            *
    * * * * * * * * * * * * *                  *    *

Amy Senerth, Esq., Muller Brazil, LLP, Dresher, PA, for Petitioner.
Debra Begley, Esq., U.S. Department of Justice, Washington, DC, for Respondent.

                               DECISION DENYING ENTITLEMENT1

Oler, Special Master:

       On January 4, 2017, Roger Lamarre (“Petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq.2 (“Vaccine Act” or “the
Program”). Petitioner alleges that the influenza (“flu”) vaccination he received on November 5,
2015, caused him to experience a right shoulder injury. See Petition (“Pet.”), ECF No. 1.

        Upon review of the evidence submitted in this case, I find that Petitioner has failed to carry
his burden demonstrating that he has met the statutory requirements of §300aa-11(c)(1)(D). In
particular, Petitioner has failed to show by preponderant evidence that he has met the Vaccine
Act’s severity requirement. Accordingly, the petition is dismissed.

1
  This decision will be posted on the United States Court of Federal Claims’ website, in accordance with
the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to
anyone with access to the internet. As provided in 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties
may object to the decision’s inclusion of certain kinds of confidential information. To do so, each party
may, within 14 days, request redaction “of any information furnished by that party: (1) that is a trade secret
or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files
or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). Otherwise, this decision will be available to the public in its present form. 

Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). Hereinafter,
for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).


                                                        1
I. Procedural History

       On January 4, 2017, Petitioner filed his petition, alleging that the flu vaccination caused
him to suffer from a right shoulder injury.3 Along with his petition, Petitioner filed exhibits 1-4.

        An SPU staff attorney held an initial status conference on February 22, 2017 and directed
Petitioner to file additional medical records by April 7, 2017. Specifically, the SPU attorney told
Petitioner to file additional evidence demonstrating six months of sequelae. ECF No. 8 at 1.
Petitioner filed additional records on April 7, 2017 and May 16, 2017. Ex. 5-7.

         On September 1, 2017, Respondent filed his Rule 4(c) Report (“Resp’t’s Rep.”). Along
with his position, Respondent submitted a Motion to Dismiss (“Resp’t’s Mot.”), arguing that
Petitioner had not met the six-month severity requirement under the Act. Respondent contended
that even if Petitioner were able to attribute his November and December 2015 symptoms to his
vaccination, the medical records do not support a finding that Petitioner’s June 2016 right bicep
injury was sequela of the vaccination and initial injury. 

Respondent concluded that
Petitioner’s shoulder symptoms following vaccination resolved, and Petitioner suffered “a separate
and unrelated injury” in June 2016. 

Finally, Respondent added that Petitioner “has also
failed to establish that he received his flu vaccine in his right arm.” 

Respondent argued
that Petitioner’s case should be dismissed. 

        On November 11, 2017, Special Master Roth held a status conference in order to discuss
the six-month severity requirement. ECF No. 22. The Special Master clarified that Petitioner’s
medical records still did not demonstrate six months of sequelae following vaccination.
Petitioner’s counsel requested additional time for Petitioner to consult with his orthopedic
specialist regarding a connection between his right shoulder pain in November 2015 and his bicep
rupture in June 2016. Special Master Roth directed Petitioner to file a status report by December
15, 2017.

        On December 18, 2017, Petitioner filed his overdue status report. ECF No. 24. In that
report, Petitioner confirmed that he had submitted attendance records from his karate class. He
requested additional time to file affidavits, gym records, and an expert report in support of his
petition and the six-month severity requirement.

        On January 2, 2018, Petitioner filed two affidavits, authored by himself and his son, Mr.
Ben Lamarre. Ex. 10-11. On February 15, 2018, Respondent filed a status report, indicating his
intent to defend this case. ECF No. 28. He requested the following additional records that had still
not been filed: 1) podiatrist records from 2014 to present, 2) complete gym attendance records
from 2014 to present, and 3) karate class attendance records from 2014 to present. Respondent
further advised Petitioner to preserve his social media account and requested a status conference
following Petitioner’s filing of all requested documents.

3
 This case was initially assigned to the Special Processing Unit (“SPU”). It was reassigned to Special
Master Roth on September 6, 2017 (ECF No. 20) before being assigned to my docket on June 8, 2018 (ECF
No. 40).

                                                  2
        Over the next several months Petitioner filed records from his podiatrists, Facebook, gym,
and karate class and, on April 17, 2018, represented that the record was complete. ECF No. 33.
Respondent filed a status report on July 9, 2018, disagreeing that the record was complete. ECF
No. 42. Respondent stated that Petitioner had not yet filed complete gym records from Anytime
Fitness. 

2, 2018, I directed Petitioner to file any additional gym records. ECF No.
43. Petitioner represented on September 4, 2018 that all records had been filed.

        I held a status conference on October 30, 2018. See Minute Entry of 10/30/2019; see also
ECF No. 45. I informed the parties that Petitioner had seemingly proved the location of the
injection site by preponderant evidence. ECF No. 45 at 1. However, I did not believe that
Petitioner had met the Vaccine Act’s statutory six-month severity requirement. 

that
the records do not indicate that Petitioner’s right shoulder pain lasted from November 5, 2015, the
date of vaccination, to May 5, 2016, six months after the date of vaccination. 

stated that the records were indicative of continued shoulder pain lasting for more than six
months. 

Petitioner’s counsel that I disagreed, and that Petitioner should express his
assertions in a responsive brief to Respondent’s Motion to Dismiss. 

see also Vaccine Rule
5 (which allows a special master to make tentative findings).

         On November 29, 2018, Petitioner filed his responsive brief to Resp’t’s Mot., stating that
Petitioner should prevail under a summary judgment standard. Petitioner’s Response (“Pet’r’s
Resp.”), ECF No. 46. Petitioner urged that Resp’t’s Mot. should be denied because the medical
records and affidavits “all demonstrate that Petitioner, more likely than not, suffered the residual
effects of his right shoulder injury for more than six (6) months following vaccination of November
5, 2015.” 

Petitioner first lists the medical appointment with Dr. Salisbury on February 2,
2016 as evidence of continuing shoulder pain.4 

Second, Petitioner states that shoulder
pain is listed under reviewed problems, history of past symptoms, and problems sections on March
7, 2016 and May 9, 2016. 

This, Petitioner argues, is evidence that Petitioner sought
treatment for his shoulder pain on those dates. Finally, Petitioner states that he was advised by his
orthopedist that there was no resolution, so Petitioner’s affidavits provide evidence of modified
activities and the use of bands and braces. 

        On December 20, 2018, Respondent filed his reply brief. Respondent’s Reply (“Resp’t’s
Reply”), ECF No. 48. Respondent reiterated that Petitioner had not met the six-month severity
requirement. Respondent added that Petitioner, in November 2017, had requested an “opportunity
to discuss [this issue] with [P]etitioner’s orthopedic [physician],” yet no statement from a treating
doctor or expert report was filed. 

Respondent requested a ruling on the record, resolving
any factual disputes based on a preponderance of the evidence standard. 

26, 2019, my chambers requested confirmation, by informal communication, from
the parties that all evidence pertaining to the Motion to Dismiss had been filed in order for a

4
  On February 2, 2016, Petitioner did visit Dr. Salisbury but not for right shoulder pain. Petitioner
mistakenly recounts this visit as one for right shoulder pain in his petition, his first affidavit, and his
responsive brief. On February 2, 2016, Petitioner presented to Dr. Salisbury for dizziness, cough, and nasal
drip. Ex. 2 at 46-49.

                                                     3
decision to issue. Petitioner responded on July 11, 2019, indicating that Petitioner wished to retain
an expert to address the six-month severity issue. Respondent replied that same day with his
objection.

        I held a status conference on August 14, 2019 to discuss Petitioner’s most recent request
to obtain an expert. See Minute Entry on 8/15/2019; see also ECF No. 49. During that conference,
Petitioner’s counsel confirmed that no further records were pending but that Petitioner requested
additional time to seek an expert opinion. ECF No. 49 at 1. Respondent objected, citing
Petitioner’s lengthy opportunity to procure expert support for his case. 

that I would not
prohibit Petitioner from seeking an expert opinion. I further stated that while an expert may be
able to opine as to a causal connection between weakened muscle and a bicep tear, they would not
be able to offer further factual evidence on this matter, as the contemporaneous medical records
speak for themselves. 

Counsel requested thirty days to speak with her client regarding
how to proceed. 

        On September 16, 2019, Petitioner filed a status report requesting a decision “resolving the
outstanding factual issues in this case.” ECF No. 50. I held a status conference on September 25,
2019, to discuss Petitioner’s status report. ECF No. 51. During the conference, I told counsel that
to establish the severity requirement in this case, Petitioner would need to file an expert report
articulating a connection between his shoulder injury from November 2015 and his biceps tendon
tear from June 2016. 

Petitioner’s counsel indicated that Petitioner did not intend to file an
expert report and requested a ruling on the record. 

10, 2019, the parties filed a joint status report, indicating that neither party
intended to file additional evidence and that the record was ready for a ruling regarding entitlement
on this existing record. ECF No. 52.

II. Factual Background

        Prior to the vaccination, Petitioner’s medical records are significant for a history of
hypertension, hyperlipidemia, anxiety, depression, dysuria, back pain, right bicep surgery, foot
pain, multilevel degenerative disc disease, bursitis of left hip, and allergic rhinitis. See generally
Ex. 1-18. In 2003, Petitioner underwent right bicep surgery, “requiring repair at the elbow.” See
Ex. 3 at 2, 3; Ex. 2 at 28; Ex. 4 at 2; see also Ex. 7 at 1.

         On December 8, 2013, Petitioner presented to Garden City Treatment Center (“GCTC”)
with upper right back pain. Ex. 4 at 2. Onset was noted as three days prior and the pain was
documented as “sharp pain” that “comes and goes.” Petitioner reported that the pain was located
between the scapula and T-spine on the right side. 

It was noted that Petitioner exhibited
a full range of motion in his right shoulder.

        On November 5, 2015, Petitioner received an influenza vaccination at the office of his
primary care physician, Dr. Dennis Botelho. Ex. 1 at 1; Ex. 2 at 56. The vaccination record
indicates that the vaccine was administered in his left arm. Ex. 1 at 1. On November 10, 2015,
Petitioner called Dr. Botelho’s office to report right shoulder pain since his flu shot and to ask
whether he should schedule a visit. Ex. 5 at 2. He was informed that his flu shot was given in his

                                                  4
left arm and that pain following vaccination was normal. 

5. Petitioner disagreed that the
vaccination was given in his left arm. 

Petitioner called back the next day to report “extreme
pain in [his] right shoulder.”5 

to GCTC on November 14, 2015 with a ten-day history of right
shoulder pain. Ex. 2 at 14-16; Ex. 4 at 7. The record indicates an acute onset of shoulder pain, and
Petitioner was assessed with right shoulder ligament strain. 

conducted and
showed no evidence of acute injury. Ex. 4 at 16. However, there was a possible benign lesion
below the humeral head. 

16, 2015, Petitioner presented to Dr. Botelho with right shoulder pain. 6 Ex.
2 at 49-52. The record indicates that he was cradling his arm with his other hand and denied any
trauma or injury. 

Dr. Botelho assessed him with right shoulder pain and advised the use
of anti-inflammatories and heat on the affected area. 

        Petitioner presented to Orthopaedic Associates, Inc. on November 23, 2015 with right
shoulder pain. Ex. 3 at 3. Dr. Louis Mariorenzi assessed Petitioner with synovitis of right shoulder
and noted it to be a new problem. 

that his right shoulder pain began after
receiving the flu vaccination three weeks prior. 

medical history, Dr. Mariorenzi
listed “repair of a right thumb amputations from a table saw injury, biceps tendon repair at the
right arm, and appendectomy.” 

prescribed Mobic and directed to continue
general ROM exercises. 

to Dr. Mariorenzi on December 21, 2015 for continued right shoulder
pain. Ex. 8. Dr. Mariorenzi assessed Petitioner and recommended he continue a home exercise
program and follow up in three weeks. 

2, 2016, Petitioner was seen at his primary care physician’s office by Dr.
Matthew Salisbury for dizziness, cough, nasal drip.7 Ex. 2 at 46-49. Petitioner presented with
“nose/sinus problems” and was diagnosed with allergic rhinitis and dizziness, a possible side effect
of blood pressure medication. 

There was no indication at this appointment of reported
shoulder pain.



5
 On October 25, 2016, Petitioner called the office to inform them that the vaccination record was incorrect
and that his flu shot from November 2015 was administered in his right arm. This record was ultimately
corrected to note the administration of the vaccine in Petitioner’s right arm.
6
  Though Petitioner presented for shoulder pain, Petitioner’s prior medical issues were all listed under
“Reviewed Problems.” Ex. 2 at 49. Subsequent medical visits indicate that new issues were added to the
“Reviewed Problems” section as they arose but were not generally removed to reflect individual
appointment concerns.
7
 In the petition, his initial affidavit, and his brief, Petitioner incorrectly identifies this appointment as one
where he sought treatment from Dr. Matthew Salisbury for right shoulder pain. He refers to this
appointment as the visit described on pages 49-52 of Exhibit 2 of the medical records. The medical visit to
which Petitioner refers is actually for the November 16, 2015 visit with Dr. Botelho.

                                                       5
        Petitioner presented to Dr. Botelho for a follow up appointment on March 7, 2016. Ex. 2
at 41-46. Dr. Botelho noted Petitioner’s “history of hyperlipidemia, hypertension, allergies, back
pain, shoulder pain, and dizziness.” 

At this appointment, Petitioner denied dizziness and
stated that he felt better since the change in blood pressure medication. 

that he had
a cough for the past month and had “no other concerns.” 

assessed Petitioner with
ongoing hyperlipidemia, hypertension, allergic rhinitis, and cough. 

There was no
indication in the record of ongoing shoulder pain at this visit.

        On April 10, 2016, Petitioner presented to GCTC. Ex. 4 at 10. At this visit, Petitioner
complained of lower back injury, sustained during a karate class on April 7, 2016. 

diagnosed with back sprain/strain and prescribed medication for pain management. 

the lumbar spine indicated lumbar spondylosis with the most significant changes at L4-L5 and
L5-S1. Ex. 4 at 16. The records for this visit did not indicate Petitioner experienced shoulder pain.

        On May 9, 2015, Petitioner presented to Dr. Botelho with complaints of foot pain. Ex. 2 at
38-41. Petitioner reported that “his [right] foot has been hurting him for a long time.” He added
that he had received cortisone injections from a podiatrist and has a history of hammertoe on the
second and third toes of the right foot. He denied any other concerns. Dr. Botelho assessed him
with hammer toe and neuroma in the right foot. He recommended Petitioner visit Dr. David
Greenberg, a podiatrist. There was no indication in this record of shoulder pain.

        Petitioner returned to GCTC on June 25, 2016 for right arm injury. Ex. 4 at 13. Petitioner
indicated that he was “moving plywood and felt a pop on upper rt bicep.” Onset was noted as
“two days ago” “after feeling a pop.” Petitioner was assessed with a deltoid muscle injury
sustained “while lifting sheet of plywood.” 

Imaging of the right humerus “showed no
evidence for fracture, dislocation or other significant bony abnormality and the soft tissue shadows
are normal.” Ex. 4 at 18.

       On July 7, 2016, Petitioner presented to Dr. Botelho for an annual examination. Ex. 2 at
33-37. Dr. Botelho performed a complete evaluation of all of Petitioner’s concerns, including his
rupture of the right bicep tendon. 

Petitioner was assessed with essential hypertension,
hyperlipidemia, spontaneous rupture of tendon of biceps, and dietary management surveillance.

8, 2016, Petitioner returned to Dr. Mariorenzi for his right bicep injury. Ex. 3 at 2.
Dr. Mariorenzi noted that Petitioner’s rupture of the right bicep tendon was a new problem.
Petitioner reported that “a few weeks ago he felt a popping sensation at the right shoulder and
subsequent prominence of the distal biceps muscle.” Dr. Mariorenzi further noted that Petitioner’s
right biceps muscle had required past repair at the elbow. He also noted that “[t]he patient’s
symptoms and physical findings are consistent with a rupture of the long head of the right biceps
tendon at the shoulder.” 

treatment with Dr. Phillip Reilly for his torn right bicep on November 29,
2016 at West Bay Orthopaedics and Neurosurgery, Inc (“WBON”). Ex. 6 at 2-8. Petitioner
presented to WBON with a four-month history of right biceps tear. Ex. 6 at 6. The record indicates



                                                  6
that he had “an acute tearing sensation and subsequently had pain and deformity.” 

recommended as an initial step. No therapy records were submitted.

        No further medical records pertinent to this issue were submitted.

III. Documentary Evidence

        A. Affidavits

            1. First Affidavit of Petitioner

        On May 16, 2017, Petitioner authored his first affidavit. He stated that he received a flu
vaccination in his right arm on November 5, 2015. Ex. 7 at 1. Following the receipt of his
vaccination, Petitioner recalled that he immediately felt pain in his right arm, bicep, and shoulder,
and his strength was limited by 50%. 

that he had suffered a “ruptured biceps
tendon in [his] right elbow while lifting weights,” in 2003 and that surgery was required in order
to repair this injury. 

that he had recovered from this injury by the time of
vaccination. 

that on November 14, 2015, he sought treatment for his symptoms from
Dr. Botelho. Ex. 7 at 2. He then recalled his visit to Dr. Mariorenzi on November 23, 2015, who
recommended a follow-up in two weeks. 

that due to work and the holidays,
he cancelled the follow-up appointment. 

that the next time he sought treatment for his arm pain was on February
2, 2016.8 Ex. 7 at 2. Petitioner recalled presenting to Dr. Salisbury for his right shoulder injury
and that Dr. Salisbury recommended visiting Dr. Mariorenzi. 

stated that
at that point, he was “losing faith in doctors trying to treat my injured shoulder.” 

that he enjoyed golfing and light exercise and owned a home remodeling
business. Ex. 7 at 1. Following the vaccination, however, Petitioner claimed that his ability to
perform manual labor was limited. 

He stated that the use of anti-inflammatories was
ineffective, and he treated his pain with the use of a sling and 800mg Ibuprofen three times per
day. 

recalled his June 2016 injury. Ex. 7 at 2. He stated that he was assisting his
son in the remodel of his daughter’s home. 

that while lifting a 15-20 lb. piece
of plywood with his son, he felt a pop in his right arm. 

the feeling to the pain he
felt after the vaccination. 

that the strength in his arm and shoulder was limited to
25%. 

mistakenly claims in his affidavit and his response to Respondent’s Motion to Dismiss that he
presented to Dr. Salisbury on February 2, 2016 with complaints of right shoulder pain. Petitioner did not
visit Dr. Salisbury for right shoulder pain on February 2, 2016. On that date, Dr. Salisbury treated Petitioner
for dizziness, cough, and nasal drip. Ex. 2 at 46-49. His last visit at that office for right shoulder pain was
on November 16, 2015. 

                                                      7
        Petitioner recalled several medical visits with Dr. Botelho, Dr. Mariorenzi, and Dr. Reilly,
during which he sought treatment for his ruptured bicep tendon. Ex. 7 at 2. He stated that in late
2016 or early 2017, Dr. Reilly prescribed physical therapy for his injury. 

that
he attended two sessions but found them to be painful and did not return. 

Affidavit of Petitioner

        On January 2, 2018, Petitioner filed a second affidavit. See Ex. 10. Petitioner reiterated
that he suffered right shoulder pain immediately following his November 5, 2015 vaccination. 

the appointments with treaters in November and December 2015, during which he
sought treatment for his right shoulder pain.9 

Petitioner stated that he did not seek
treatment after December 2015 because Dr. Mariorenzi told him that there was no other solution
and he “lost faith in doctors.” 

Petitioner added that he modified his regular activities in
order to cope with the shoulder pain, and he stopped going to the gym and reduced his karate class
attendance. 

Petitioner stated that he firmly believes that his right bicep tear was a result
of his vaccination and not from moving plywood. 

of Mr. Ben Lamarre

        Mr. Ben Lamarre, Petitioner’s son, submitted an affidavit on January 2, 2016. See Ex. 11.
He stated that he has worked with his father in his remodeling business since 2014. 

He
recalled that in November of 2015, Petitioner complained about his right shoulder “[feeling]
funny” since the vaccination. 

that his father’s arm never recovered, and Mr.
Lamarre had to take over the remodeling portion of his father’s business. 

that in
June 2016, his father was helping him move a bulky piece of plywood when Petitioner felt a pop
in his shoulder. 

that in the past, his father could lift two plywood pieces without
incident. 

Documentary Evidence

       On February 22, 2018, Petitioner submitted his karate class attendance records for 2015 and
2016. Ex. 12. The records indicate that prior to his vaccination, Petitioner attended class five days
in August 2015 and four days in both September and October 2015. 

Following his
vaccination, Petitioner attended the following number of classes per month: four days in November
2015, five days in December 2015, seven days in January 2016, six days in February 2016, five
days in March 2016, four days in April 2016, and five days in May 2016. 

further
illustrate that Petitioner did not attend classes from June 2016 through the remainder of the year
and resumed classes on January 17, 2017. 

2.

      Additionally, on May 15, 2018, Petitioner filed his gym attendance records. Ex. 17, 18. The
records do not contain any evidence of attendance in 2015. Ex. 18 at 2. In 2016, Petitioner utilized
his gym membership on four days in March 2016, six days in April 2016, four days in May 2016,
and one day in June 2016. 

gym records were filed. 

Petitioner did not claim that he sought treatment for right shoulder pain on February 2, 2016.

                                                       8
IV. Applicable Law

        A. Petitioner’s Overall Burden in Vaccine Program Cases

        Under the Vaccine Act, a petitioner may prevail in one of two ways. First, a petitioner may
demonstrate that he suffered a “Table” injury—i.e., an injury listed on the Vaccine Injury Table
that occurred within the time period provided in the Table. § 11(c)(1)(C)(i). “In such a case,
causation is presumed.” Capizzano v. Sec’y of Health & Human Servs., 

, 1320 (Fed.
Cir. 2006); see § 13(a)(1)(B). Second, where the alleged injury is not listed in the Vaccine Injury
Table, a petitioner may demonstrate that he suffered an “off-Table” injury. § 11(c)(1)(C)(ii).

         For both Table and non-Table claims, Vaccine Program petitioners bear a “preponderance
of the evidence” burden of proof. § 13(1)(a). That is, a petitioner must offer evidence that leads
the “trier of fact to believe that the existence of a fact is more probable than its nonexistence before
[she] may find in favor of the party who has the burden to persuade the judge of the fact’s
existence.” Moberly v. Sec’y of Health & Human Servs., 

, 1324 (Fed. Cir. 2010);
see also Snowbank Enter. v. United States, 

, 486 (1984) (mere conjecture or
speculation is insufficient under a preponderance standard). Proof of medical certainty is not
required. Bunting v. Sec’y of Health & Human Servs., 

, 873 (Fed. Cir. 1991).

        Medical records and/or statements of a treating physician’s views do not per se bind the
special master to adopt the conclusions of such an individual, even if they must be considered and
carefully evaluated. Section 13(b)(1) (providing that “[a]ny such diagnosis, conclusion, judgment,
test result, report, or summary shall not be binding on the special master or court”); Snyder v. Sec’y
of Health & Human Servs., 

, 746 n.67 (2009) (“there is nothing … that mandates
that the testimony of a treating physician is sacrosanct -- that it must be accepted in its entirety and
cannot be rebutted”). As with expert testimony offered to establish a theory of causation, the
opinions or diagnoses of treating physicians are only as trustworthy as the reasonableness of their
suppositions or bases. The views of treating physicians should also be weighed against other,
contrary evidence also present in the record -- including conflicting opinions among such
individuals. Hibbard v. Sec’y of Health & Human Servs., 

, 749 (2011) (not
arbitrary or capricious for special master to weigh competing treating physicians’ conclusions
against each other), aff’d, 

(Fed. Cir. 2012); Caves v. Sec’y of Health & Human
Servs., No. 06-522V, 

, at *17 (Fed. Cl. Spec. Mstr. Apr. 29, 2011), mot. for
review den’d, 

, 356 (2011), aff’d without opinion, 475 Fed. App’x 765 (Fed. Cir.
2012).

        Petitioners in the Vaccine Program are required to demonstrate that they meet the Vaccine
Act’s six-month severity requirement.10 A petitioner must show by preponderant evidence that he

10
  Specifically, §300aa-11(c)(1)(D) of the Vaccine Act requires that a Petitioner either show that: (1) he
“suffered the residual effects or complications of [his alleged shoulder pain] for more than 6 months after
the administration of the vaccine” (see §300aa-11(c)(1)(D)(i)); (2) that he “died from the administration of
the vaccine” (see §300aa-11(c)(1)(D)(ii)); or (3) that his shoulder pain “resulted in inpatient hospitalization
and surgical intervention” (see § 300aa-11(c)(1)(D)(iii)).


                                                      9
or she suffered from sequela of their vaccine-related injury for more than six months following the
date of vaccination. §11(c)(1)(D). Petitions are frequently dismissed or denied for failure to satisfy
this statutory requirement. See Wagner v. Sec’y of Health & Human Servs., No. 17-1388V, 

(Fed. Cl. Spec. Mstr. May 8, 2019), mot. for review denied, 

(Fed.
Cl. June 4, 2019); see also Watts v. Sec’y of Health & Human Serv., No. 17-1494V, 

(Fed. Cl. Spec. Mstr. Aug. 13, 2019)(citing Gerami v. Sec’y of Health & Human Servs.,

(2014)(upholding dismissal of case on basis of failure to meet severity
requirement, where record did not establish injury lasted more than three months, and Petitioner
could not persuasively vary record with physician letter prepared in anticipation of lawsuit that
was not otherwise corroborated by record evidence.)).

       B. Legal Standard for Fact Finding

        Petitioner bears the burden of establishing her claim by a preponderance of the evidence.
42 U.S.C. § 300aa-13(1)(a). A petitioner must offer evidence that leads the “trier of fact to believe
that the existence of a fact is more probable than its nonexistence before [he or she] may find in
favor of the party who has the burden to persuade the judge of the fact’s existence.” Moberly v.
Sec’y of Health & Human Servs., 

, 1322 n.2 (Fed. Cir. 2010) (citations omitted).

        In order to make a determination concerning factual issues, such as the timing of onset of
petitioner’s alleged injury, the special master should first look to the medical records. “Medical
records, in general, warrant consideration as trustworthy evidence. The records contain
information supplied to or by health professionals to facilitate diagnosis and treatment of medical
conditions. With proper treatment hanging in the balance, accuracy has an extra premium.”
Cucuras v. Sec’y of Health & Human Servs., 

, 1528 (Fed. Cir. 1993); Lowrie v.
Sec’y of Health & Human Servs., No. 03-1585V, 

, at *8 (Fed. Cl. Spec. Mstr.
Nov. 29, 2006). Medical records created contemporaneously with the events they describe are
presumed to be accurate and complete. Doe/70 v. Sec’y of Health & Human Servs., 

, 608 (2010).

       Contemporaneous medical records generally merit greater evidentiary weight than oral
testimony; this is particularly true where such testimony conflicts with the record evidence.

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

,
733 (1991), aff’d, 

(Fed. Cir. 1992)(citing United States v. United States Gypsum
Co., 

, 396 (1947) (“It has generally been held that oral testimony which is in conflict
with contemporaneous documents is entitled to little evidentiary weight”)). “Written
documentation recorded by a disinterested person at or soon after the event at issue is generally
more reliable than the recollection of a party to a lawsuit many years later.” Reusser v. Sec’y of
Health & Human Servs., 

, 523 (1993).

       However, there are situations in which compelling oral testimony may be more persuasive
than written records--for instance in cases where records are found to be incomplete or inaccurate.

(“like 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,



                                                 10
inconsistent, should be accorded less deference than those which are internally consistent”)
(quoting 

).

        When witness testimony is used to overcome the presumption of accuracy afforded to
contemporaneous medical records, such testimony must be “consistent, clear, cogent, and
compelling.” Sanchez v. Sec’y of Health & Human Servs., No. 11-685V, 

(Fed.
Cl. Spec. Mstr. Apr. 10, 2013)(citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808V,

, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In determining the accuracy and
completeness of medical records, the Court of Federal Claims has listed four possible explanations
for inconsistencies between contemporaneously created medical records and later testimony: (1) a
person’s failure to recount to the medical professional everything that happened during the relevant
time period; (2) the medical professional’s failure to document everything reported to her or him;
(3) a person’s faulty recollection of the events when presenting testimony; or (4) a person’s
purposeful recounting of symptoms that did not exist. La Londe v. Sec’y of Health & Human
Servs., 

, 203-04 (2013), aff’d, 

(Fed. Cir. 2014). A special master
making a determination whether to afford greater weight to contemporaneous medical records or
other evidence, such as testimony at a hearing must have evidence suggesting the decision was a
rational determination. Burns by Burns v. Sec’y of Health & Human Servs., 

, 417 (Fed.
Cir. 1993).

V. Analysis

        I find that Petitioner in this case has not provided preponderant evidence to establish that
his shoulder injury or its residual effects continued for more than six months. As such, I find that
Petitioner did not meet the Vaccine Act’s six-month severity requirement and, therefore, is not
entitled to compensation under the Vaccine Program.

       A. Petitioner’s Injection Site and Onset of Right Shoulder Pain

       As an initial matter, I find that Petitioner experienced right shoulder pain following his
November 5, 2015 flu vaccination. The medical records support Petitioner’s claims that his
vaccination was likely administered in his right arm and that Petitioner developed pain following
his vaccination.

         First, I find the medical records establish that Petitioner’s vaccination was administered in
his right arm. The records initially indicated that the vaccination was administered in his left arm.
These records were altered to indicate the right arm over a year after the vaccination date.
However, the supplemental patient records detailing Petitioner’s phone conversations with Dr.
Botelho’s office clarify this issue. On November 10, 2015, Petitioner called Dr. Botelho’s office
complaining of right shoulder pain since his vaccination and inquired whether he should schedule
a visit. He was told that he received the vaccination in his left arm and that some pain following
vaccination was normal. The following day, on November 11, 2015, Petitioner called again
regarding his shoulder pain. During this phone call, he recalled for the nurse his conversation on
the previous date, that he had been told the vaccination was given in his left arm. He informed the
nurse that the vaccination had actually been given in his right arm and, since that date, he has
suffered from tremendous pain.

                                                 11
        I find these records of the phone conversations between Petitioner and Dr. Botelho’s office
to be persuasive. Though the record was not altered to reflect the right arm as the vaccine
administration site until October 2016, Petitioner noted his disagreement with the record within
five days of his vaccination.

        Second, Petitioner’s medical records support an onset of right shoulder pain within 48
hours after his flu vaccination. On November 10, 2015, five days post-vaccination, Petitioner
called Dr. Botelho’s office to complain of right shoulder pain since his flu shot and inquired
whether he should schedule a visit. Then, on November 14, 2015, ten days post-vaccination,
Petitioner reported to GCTC with a ten-day history of right shoulder pain. Finally, on November
23, 2015, Petitioner sought treatment from Dr. Mariorenzi. At that appointment, Petitioner stated
that his shoulder pain began after his flu shot three weeks prior.

       I find the medical records to be clear and consistent with regards to onset. Petitioner
reported his shoulder pain within five days and dated the pain back to the shot. Petitioner then
sought treatment for his shoulder pain within ten days, again dating the pain back to his
vaccination. As such, I find that Petitioner’s right shoulder pain began within 48 hours of his flu
vaccination.

       B. Six-Month Severity Requirement

        Petitioner did not present preponderant evidence to establish that he meets the Vaccine
Act’s six-month severity requirement. The Vaccine Act requires that Petitioner suffer from the
residual effects of his right shoulder injury for at least six months following his November 5, 2015
vaccination. I find, however, that the medical records and additional objective evidence indicate
that Petitioner’s shoulder pain did not continue past December 2015. Instead, these records
indicate that he suffered a second, separate injury in June 2016 not connected to his vaccination.

           1. Medical Records

        The medical records indicate that Petitioner did not suffer the residual effects of his right
shoulder injury after December 2015. As discussed above, Petitioner did present with right
shoulder pain immediately following his vaccination. Petitioner sought treatment from both his
primary care physician and his orthopedic specialist, Dr. Mariorenzi, throughout November and
December 2015. On December 21, 2015, Dr. Mariorenzi recommended that Petitioner continue a
home exercise program and follow-up in three weeks. There are no records indicating that
Petitioner followed-up with Dr. Mariorenzi in three weeks. Between February and June 2016,
Petitioner presented for seven different medical visits to Dr. Botelho’s office, GCTC, his urologist,
and a podiatrist for a myriad of other symptoms. (February 2, 2016, Ex. 2 at 46-49; March 7, 2016,
Ex. 2 at 41-46; April 9, 2016, Ex. 4 at 10; April 25, 2016, Ex. 2 at 12; May 9, 2016, Ex. 2 at 38-
41; May 19, 2016, Ex. 2 at 9-11; June 20, 2016, Ex. 2 at 8). However, the medical records indicate
that Petitioner did not complain of shoulder pain or seek treatment for shoulder pain at any of those
visits.




                                                 12
        Then, on June 25, 2016, Petitioner presented to GCTC for a right bicep injury. He stated
that he was “moving plywood and felt a pop on [his] upper [right] bicep,” and indicated the onset
of his injury as two days prior. The medical records do not note any mention of previous or
ongoing shoulder pain. Further, on July 8, 2016, Petitioner presented again to Dr. Mariorenzi for
his right bicep injury. Dr. Mariorenzi noted this injury as a new problem.

        I find that the medical records indicate Petitioner’s June 25, 2016 injury was a new issue
caused by the lifting of plywood two days prior. The records do not create any link between
Petitioner’s right shoulder pain following vaccination and his right biceps injury. Though
Petitioner states in his affidavits that he had continued right shoulder pain prior to this secondary
injury, I am persuaded by contemporaneously created medical records that are clear and consistent.
These medical records illustrate that Petitioner sought treatment for a multitude of injuries after
December 2015, including back pain and foot pain, but did not seek further treatment for his
shoulder.

        Similarly, I do not find persuasive Petitioner’s claim that his June 25, 2016 injury was a
continuation of his previous shoulder pain. At his GCTC visit on June 25, 2016, Petitioner himself
attributed his bicep injury to heavy lifting, noted the onset of his injury as two days prior, and did
not allude to any ongoing shoulder pain. Subsequent medical visits also date his right bicep injury
back to the plywood lifting incident with no mention of Petitioner’s previous right shoulder pain
(See Ex. 2 at 37, medical visit on July 7, 2016 where Petitioner was assessed with “spontaneous
rupture of other tendons, right upper arm.”; Ex. 3 at 2, medical visit on July 8, 2016 where the
records indicate “a few weeks ago [Petitioner] felt a popping sensation at the right shoulder and
subsequent prominence of the distal biceps muscle.”; Ex. 6 at 6, medical appointment from
November 29, 2016 where the “history of present illness” section states, “about four months post
a right proximal biceps tear. He had acute tearing sensation and subsequently had pain and
deformity.”). I believe these consistent medical records provide persuasive evidence that
Petitioner’s initial right shoulder pain resolved soon after his December 21, 2015 appointment with
Dr. Mariorenzi, and Petitioner then suffered a secondary, unrelated right arm injury while lifting
plywood in June 2016. There is no evidence in the record that connects Petitioner’s shoulder pain
from November 2015 with his arm injury from June of 2016.

         Finally, I am not persuaded by Petitioner’s argument in Pet’r’s Resp. that the listing of
shoulder pain under “History” in the medical records suggests ongoing treatment for shoulder pain.
It is evident from the records that the “History” section contains all past issues, and assessments
for each respective visit are found under the regularly updated “Assessment/Plan” section.
Moreover, in his second affidavit, Petitioner admits to not seeking medical treatment for his
shoulder pain after December 21, 2015. Ex. 10 at 1.

            2. Karate and Gym11 Records

       Petitioner submitted his karate class records and gym attendance records to provide
evidence that his right shoulder injury forced him to reduce his participation in both. I do not find

11
  Petitioner submitted gym records from March to May of 2016. As there are no records from prior to the
vaccination or the months immediately following the vaccination, these attendance records do not provide
information regarding the effect of Petitioner’s right shoulder pain on his physical activity.

                                                  13
either indicative of continued right shoulder pain; rather, I find that the karate records more likely
indicate a resolution of his shoulder pain.

        In the months preceding vaccination, Petitioner attended karate class between four and five
times per month. Ex. 12. After his vaccination on November 5, 2015, his attendance for the
remainder of the year was unchanged, as he attended karate four days in November and five in
December. 

subsequently increased, however, to seven days in January 2016,
six days in February, and five days in March. 

four days in April and five
days in May. 

his attendance in June 2016 until January 17, 2017. 

above, I do not view Petitioner’s karate class or gym records as supportive
of continued right shoulder pain past December 2015, since Petitioner’s highest attendance in
karate class was in January and February of 2016. In fact, Petitioner’s continued class attendance
and suspension of attendance in June 2016 provide evidence supporting a resolution of his right
shoulder pain in December of 2015 and the onset of a new injury in June 2016. Accordingly, I am
not persuaded that Petitioner continued to suffer from right shoulder pain after December 2015 or
that his physical activity suffered as a result of said pain.

           3. Affidavits

        In order to overcome the presumption that contemporaneous written medical records are
accurate, testimony must be “consistent, clear, cogent, and compelling.” Blutstein, 

, at *5. Because of this presumption, “special masters in this Program have traditionally
declined to credit later testimony over contemporaneous records.” Sturdivant v. Sec’y of Health
& Human Servs., No. 07-788V, 

, at *15 (Fed. Cl. Spec. Mstr. January 21, 2016).
See, e.g., Stevens v. Sec’y of Health & Human Servs., No. 90–221V, 

, at *3 (Cl.
Ct. Spec. Mstr. December 21, 1990); see also Vergara v. Sec’y of Health & Human Servs., No.
08–882V, 

, at *4 (Fed. Cl. Spec. Mstr. July 17, 2014) (“Special Masters
frequently accord more weight to contemporaneously-recorded medical symptoms than those
recorded in later medical histories, affidavits, or trial testimony.”); see also, 

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

        Petitioner submitted three affidavits, two authored by himself and one from his son. In his
affidavits, Petitioner stated that he did not continue to seek treatment for his right shoulder pain
because he “[lost] faith” in his treaters’ ability to resolve his issue. He clarified, however, that
despite the lack of treatment, his pain was continuous and ongoing at the time of his June 25, 2016
injury. Petitioner alleged that his right bicep tear in June 2016 was a result of his vaccination and
not from lifting plywood.

       Petitioner’s affidavits do not overcome the contemporaneous medical records filed in this
case. Those records indicate that Petitioner sought treatment for his shoulder injury only twice
from his orthopedic specialist before deciding not to return. Petitioner was recommended for a
follow-up visit to his December 21, 2015 appointment if his pain continued, but he did not present




                                                 14
for another visit with Dr. Mariorenzi. During the two appointments with Dr. Mariorenzi, Petitioner
was not prescribed physical therapy or a steroid injection. Petitioner did not return for a follow-
up to consider such options. He attended seven medical appointments without mention of shoulder
pain. Finally, when Petitioner did present for a right bicep injury in June 2016, he made no mention
of ongoing right shoulder pain at that or any subsequent appointment and instead stated that his
arm pain began two days prior when lifting plywood.

        Accordingly, I have concluded that the medical records and medical histories, provided
close-in-time to Petitioner’s injuries, are more persuasive than the affidavits presented by Mr.
Lamarre and his son between 18 months and two years after the fact. For that reason, I am not
persuaded that Petitioner’s right shoulder pain following vaccination extended beyond December
2015.

VI. Conclusion

        Upon careful evaluation of all the evidence submitted in this matter--including the medical
records, physical activity records, and affidavits, I find that Petitioner has not established by
preponderant evidence that he has met the Vaccine Act’s statutory six-month severity requirement.
Petitioner’s affidavits and other documentary evidence in the face of contrary medical record
evidence do not carry his burden of persuasion. Accordingly, Petitioner’s claim for compensation
is dismissed.

        In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the clerk shall enter judgment in accord with this decision.12

        IT IS SO ORDERED.


                                                         s/ Katherine E. Oler
                                                         Katherine E. Oler
                                                         Special Master




12
  Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly
or separately) a notice renouncing their right to seek review.

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