In the United States Court of Federal Claims
                           OFFICE OF SPECIAL MASTERS

*********************
DAVID TUTT, as personal         *
representative of the Estate of *
THOMAS TUTT, deceased,          *                    No. 16-385V
                                *                    Special Master Christian J. Moran
                    Petitioner, *
                                *
v.                              *                    Filed: February 3, 2020
                                *
SECRETARY OF HEALTH             *                    Fact ruling; transverse myelitis
AND HUMAN SERVICES,             *                    (“TM”); onset of symptoms.
                                *
                    Respondent. *
*********************

Karen H. Ross, The Law Office of Karen H. Ross, Henderson, NV, for petitioner;
Lisa A. Watts, United States Dep’t of Justice, Washington, DC, for respondent.

                    UNPUBLISHED RULING FINDING FACTS*

       The petition, filed under the National Childhood Vaccine Injury
Compensation Program, 42 U.S.C. § 300aa–10 through 34 (2012), alleges that
Thomas Tutt suffered from transverse myelitis (“TM”) as a result of the influenza
vaccine he received on November 14, 2013. Pet., filed Mar. 25, 2016, at 1. The
parties dispute when Mr. Tutt started to experience symptoms potentially
associated with TM.1

       *
         The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this ruling on its website. Anyone will be able to access this
ruling via the internet (https://www.uscfc.uscourts.gov/aggregator/sources/7). Pursuant to
Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical
information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions
ordered by the special master will appear in the document posted on the website.
       1
         Mr. Tutt passed away on November 25, 2018, see Pet’r’s Status Rep., filed Mar. 21,
2019, ¶ 1, and his son, David Tutt, became the personal representative of his estate and was
                                    Procedural History

      The claim is that a November 13, 2014 flu vaccination caused Mr. Tutt to
develop transverse myelitis that was diagnosed on January 25, 2015, after an MRI.
As support for this claim, Mr. Tutt filed affidavits and medical records. In his
affidavit, Mr. Tutt asserted that he had neck pains on Wednesday, November 27,
2013. Exhibit 17, ¶ 4. Mr. Tutt retained an expert who opined that these neck
pains were prodromal symptoms of the transverse myelitis. Exhibit 23 at 14.

       The Secretary disputed Mr. Tutt’s claim. The Secretary maintained that a
69-day time between vaccination and onset of TM was not appropriate. The
Secretary also identified an upper respiratory infection diagnosed on January 13,
2014, approximately 11 days prior to Mr. Tutt’s TM diagnosis, as a potential
alternative cause of the TM. See Resp’t’s Rep., filed Aug. 2, 2016, at 2-3, 6-7.

       Whether Mr. Tutt had neck pains in the weeks after his vaccination appeared
to be a critical aspect of the expert opinion. Thus, Mr. Tutt was directed to develop
evidence on this point. Accordingly, Mr. Tutt submitted, among other documents,
records from chiropractor visits at Albuquerque Neck & Back Pain Center that
spanned from December 23, 2010, to November 10, 2011. See exhibit 62 (filed
Oct. 19, 2017) at 1-2. However, the handwriting in many of these records was not
legible and Mr. Tutt was directed to obtain a transcription. At the pre-hearing
conference, a transcription of the chiropractor’s records remained outstanding. See
order, issued Feb. 8, 2018. Mr. Tutt filed supplemental records from Albuquerque
Neck & Back Pain Center, which included notes from an additional visit on
December 4, 2013. See exhibit 70 (filed Feb. 7, 2018) at 2. Because these
supplemental records revealed that Mr. Tutt had sought chiropractic care in the
critical time (after the November 2014 flu vaccination and before the January 2015
hospitalization), the undersigned wanted the chiropractor to testify. Order, issued
Feb. 8, 2018.

       A hearing was held on February 15, 2018, in Albuquerque, New Mexico, in
which seven witnesses, including Mr. Tutt, testified. Mr. Tutt’s chiropractor, Dr.
Denbign, also testified. Dr. Denbign brought his complete file to the witness stand
and, in doing so, produced records that had not been previously filed. Tr. 230-31.


substituted as petitioner in the case on August 20, 2019, see Order, issued Aug. 20, 2019, ECF
No. 91. In this ruling, “Mr. Tutt” is Thomas Tutt.

                                               2
These additional records included documentation from visits in 2007-2009, and
were later filed by Mr. Tutt’s counsel on March 14, 2018. See exhibit 72 (filed
Mar. 14, 2018), ECF No. 65.

      After the hearing, the undersigned issued an order directing the parties to file
Proposed Findings of Fact focusing on facts relevant to the issue of causation. See
Order, issued Feb. 21, 2018, ECF No. 61. The parties submitted their final
combined set of Proposed Findings of Fact on November 20, 2019.2 See Proposed
Findings of Fact, filed Nov. 20, 2019, ECF No. 101.

                                Standard for Finding Facts

      Petitioners are required to establish their cases by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence
standard requires a “trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] 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., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted).

      The process for finding facts in the Vaccine Program begins with analyzing
the medical records, which are required to be filed with the petition. 42 U.S.C.
§ 300aa–11(c)(2). Medical records that are created contemporaneously with the
events they describe are presumed to be accurate. Cucuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).

       Not only are medical records presumed to be accurate, they are also
presumed to be complete, in the sense that the medical records present all the
patient’s medical issues. Completeness is presumed due to a series of propositions.
First, when people are ill, they see a medical professional. Second, when ill people
see a doctor, they report all of their problems to the doctor. Third, having heard
about the symptoms, the doctor records what he or she was told.

      Appellate authorities have accepted the reasoning supporting a presumption
that medical records created contemporaneously with the events being described
are accurate and complete. A notable example is Cucuras in which petitioners

       2
         Issues related to Mr. Tutt’s counsel of record extended the interval between the
conclusion of the hearing and the submission of Proposed Findings of Fact.

                                                3
asserted that their daughter, Nicole, began having seizures within one day of
receiving a vaccination, although medical records created around that time
suggested that the seizures began at least one week after the vaccination. Cucuras,
993 F.3d at 1527. A judge reviewing the special master’s decision stated that “[i]n
light of [the parents’] concern for Nicole’s treatment . . . it strains reason to
conclude that petitioners would fail to accurately report the onset of their
daughter’s symptoms. It is equally unlikely that pediatric neurologists, who are
trained in taking medical histories concerning the onset of neurologically
significant symptoms, would consistently but erroneously report the onset of
seizures a week after they in fact occurred.” Cucuras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993 F.2d 1525 (Fed. Cir. 1993).

       Judges of the Court of Federal Claims have followed Cucuras in affirming
findings by special masters that the lack of contemporaneously created medical
records can contradict a testimonial assertion that symptoms appeared on a certain
date. See, e.g., Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl. 598, 608
(Fed. Cl. 2010) (stating “[g]iven 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”),
aff’d sub nom. Rickett v. Sec’y of Health & Human Servs., 468 Fed. Appx. 952
(Fed. Cir. 2011) (non-precedential opinion); Doe/17 v. Sec’y of Health & Human
Servs., 84 Fed. Cl. 691, 711 (2008); Ryman v. Sec’y of Health & Human Servs.,
65 Fed. Cl. 35, 41-42 (2005); Snyder v. Sec’y of Health & Human Servs., 36 Fed.
Cl. 461, 465 (1996) (stating “The special master apparently reasoned that, if Frank
suffered such [developmental] losses immediately following the vaccination, it was
more likely than not that this traumatic event, or his parents’ mention of it, would
have been noted by at least one of the medical record professionals who evaluated
Frank during his life to date. Finding Frank’s medical history silent on his loss of
developmental milestones, the special master questioned petitioner’s memory of
the events, not her sincerity.”), aff’d, 117 F.3d 545, 547-48 (Fed. Cir. 1997).

       The presumption that contemporaneously created medical records are
accurate and complete is rebuttable, however. For cases alleging a condition found
in the Vaccine Injury Table, special masters may find when a first symptom
appeared, despite the lack of a notation in a contemporaneous medical record. 42
U.S.C. § 300aa-13(b)(2). By extension, special masters may engage in similar
fact-finding for cases alleging an off-Table injury. In such cases, special masters
are expected to consider whether medical records are accurate and complete. To
overcome the presumption that written records are accurate, testimony is required
to be “consistent, clear, cogent, and compelling.” Blutstein v. Sec’y of Health &
                                         4
Human Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June
30, 1998).

       In determining the accuracy and completeness of medical records, special
masters will consider various explanations for inconsistencies between
contemporaneously created medical records and later given testimony. The Court
of Federal Claims has identified four such explanations for explaining
inconsistencies: (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 Health &
Human Servs., 110 Fed. Cl. 184, 203 (2013), aff’d, 746 F.3d 1334 (Fed. Cir.
2014).

       When weighing divergent pieces of evidence, special masters usually find
contemporaneously written medical records to be more significant than oral
testimony. Cucuras, 993 F.2d at 1528. Testimony offered after the events in
question is less reliable than contemporaneous reports when the motivation for
accurate explication of symptoms is more immediate. Reusser v. Sec’y of Health
& Human Servs., 28 Fed. Cl. 516, 523 (1993). However, compelling oral
testimony may be more persuasive than written records. Campbell, 69 Fed. Cl. at
779 (“[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.”); Camery v. Sec’y of Health & Human Servs., 42
Fed. Cl. 381, 391 (1998) (this rule “should not be applied inflexibly, because
medical records may be incomplete or inaccurate”); Murphy v. Sec’y of Health &
Human Servs., 23 Cl. Ct. 726, 733 (1991) (“[T]he absence of a reference to a
condition or circumstance is much less significant than a reference which negates
the existence of the condition or circumstance.”) (citation omitted), aff’d, 968 F.2d
1226 (Fed. Cir. 1992).
                                      Discussion

       The overarching factual determinations to be made are those relevant to
establishing whether the flu vaccine caused Mr. Tutt’s TM. See Order, issued Feb.
21, 2018, ECF No. 61. Based on the facts presented by petitioner, as well as the
Secretary’s objections, in the combined set of Proposed Findings of Fact, see
Proposed Findings of Fact, the key factual issues relevant to this causation analysis
are: (1) Mr. Tutt’s pre-vaccination behavior and medical issues, including
complaints, medical attention sought, and the extent to which Mr. Tutt’s pre-
                                          5
vaccination ailments appear chronic and/or continuous; (2) Mr. Tutt’s pre-
vaccination versus post-vaccination use of sick leave; (3) Mr. Tutt’s health and
behavior on two out-of-town trips after his vaccination; (4) Mr. Tutt’s lack of
reports of pain to medical professionals after his vaccination; and (5) the onset of
Mr. Tutt’s upper and lower extremity weakness after his vaccination. The
undersigned addresses each of these factual issues in turn.

      1. Pre-Vaccination Behavior and Medical Issues

        The parties dispute several points regarding Mr. Tutt’s pre-vaccination
medical history. Mr. Tutt asserts that he never complained of ailments to his wife,
Proposed Findings of Fact ¶ 4, and that while Mr. Tutt did seek chiropractic
treatment during the years of 2007-2009, this was not indicative of a continuous or
chronic issue. See, e.g., id. ¶ 8(c) (describing chiropractic treatment as “on an as
needed basis”), (e) (chiropractic appointments were “specific to symptoms that Mr.
Tutt felt at that specific time” in 2007), (f) (stating that six chiropractic visits in
one year is “not abnormal”), (j) (stating that Mr. Tutt’s doctor “did distinguish” his
2008 symptoms from his 2007 symptoms), (m) (contending that his symptoms in
2009 “only began several weeks prior to his February 25, 2009 visit”). Mr. Tutt
further asserted that he did not see a chiropractor for backache symptoms in 2010,
see id. ¶ 8(p), and that his chiropractic visit in 2011 was solely related to “injuries
sustained during the physical training connected to the job [that he applied for]
with the police department” (i.e. wholly unconnected to the reasons for his prior
visits), see id. ¶ 8(s). The Secretary disputes both points, contending that Mr. Tutt
sought chiropractic care in 2010, see id. ¶ 8(p), and that there was no testimony
regarding injuries sustained as part of a police department job, see id. ¶ 8(s)..

       The undersigned first finds that Mr. Tutt more likely than not did complain
to his wife about ailments prior to his vaccination. The dispute between petitioner
and respondent on this point comes down to conflict between Mrs. Tutt’s and Mr.
Tutt’s testimonies. Compare Tr. 19 (Mrs. Tutt stating that Mr. Tutt “never”
complained), with Tr. 119-20 (Mr. Tutt stating that he complained to his wife
about “three to four times a year” about various ailments). Though Mr. Tutt did
not specify in his testimony whether he complained specifically about the medical
issues from 2006-2009 referenced in the Proposed Findings of Fact, it is reasonable
to find that his complaints would likely include references to these symptoms,
given the frequency with which they occurred during those years and the treatment
sought.



                                           6
      The undersigned finds that, while it is possible that Mr. Tutt visited a
medical doctor more than once in 2006, any appointments were only for cancer
treatment. See exhibit 3 at 1, 3, 10 (referencing his right radical nephrectomy
performed in November 2006 and his “[h]istory of cancer in 2006”). Thus, the
undersigned finds that Mr. Tutt did not see a doctor for purposes of treating back,
neck, and/or shoulder pain as referenced heavily in the Proposed Findings of Fact
in 2006.

       Next, the undersigned finds that, due to the clear similarity in symptoms
with respect to his reasons for seeking chiropractic treatment in 2007-2011, these
conditions were continuous throughout this time period. The undersigned
acknowledges that the severity of the symptoms likely ebbed and flowed, but the
symptoms that persisted throughout this period were consistent. Mr. Tutt
references multiple chiropractic trips during this period in the Proposed Findings of
Fact. See Proposed Findings of Fact, ¶ 8(a)-(p). The chiropractor records support
the 2007-2011 dates referenced by Mr. Tutt, including the statement that Mr. Tutt
made “about 18 visits” to the chiropractor during this period. Tr. 220; see exhibit
72 at 1-7 (displaying notes from 19 separate visits between 2007-2011).3 Many of
the notations from these visits are handwritten and fairly illegible, except for those
that are typed—December 23, 2010; May 3, 2011; September 22, 2011; October
26, 2011; and November 10, 2011. See exhibit 70 at 1-2. However, Dr. Denbign’s
testimony confirms, based on his reading of the handwritten notes, that the other
appointments include notations such as “neck, upper back, pulling on the left side
for several weeks,” “[h]eadaches several weeks, neck is achy,” and “neck stiff
continues . . . occasional headaches.” Tr. 245, 247. The undersigned agrees that,
after 2007, Mr. Tutt’s visits to the chiropractor seem to be on an as-needed basis in
that they were not regularly scheduled appointments. Additionally, all the notes
include complaints about back, neck, shoulder, and/or joint pain. See exhibit 70 at
1 (“scapular pain . . . shoulder girdle thoracic spine tight ache” on December 23,
2010); id. (“achey stiff . . . joint dysfunction trigger points shoulder girdle muscles
right upper lower trapezius taught and tender” on May 3, 2011); id. (“neck achey
stiff with headaches upper back tight” on September 22, 2011); id. at 2 (“upper
back, neck achey stiff lumbar spine stiff” on October 26, 2011); id. (“achey stiff

       3
         Though Mr. Tutt claims to have visited the chiropractor six times in 2007, see Proposed
Findings of Fact ¶ 8(a), the medical records and hearing testimony show only one visit, which
was on May 7, 2007. See exhibit 62 at 6-7 (patient intake form completed on May 7, 2007); Tr.
240. Thus, the undersigned finds that Mr. Tutt visited the chiropractor on May 7, 2007, with the
“chief complaint” noted as “[n]eck/upper back pain” that had occurred “[o]n and off for 20
years.” Exhibit 62 at 7.

                                               7
started yesterday” on November 10, 2011); Exhibit 72 at 1-8 (displaying
appointment notes from each of Mr. Tutt’s chiropractic visits); see also Tr. 245,
247 (referencing visits on August 2008, February 2009, February 2010, and
October 2010, in which symptoms were described as “neck, upper back, pulling on
the left side for several weeks,” “[h]eadaches several weeks, neck is achy,” and
“neck stiff continues . . . occasional headaches”). The consistent language of these
complaints indicates that these were not separate issues with distinct causes.
Furthermore, the lack of evidence, other than Mr. and Mrs. Tutt’s testimonies,
regarding the police boot camp as a cause for some of the 2011 symptoms, see
Proposed Findings of Fact ¶ 8(r)-(s), further supports this conclusion. There is no
indication in the medical records that Mr. Tutt reported this as a cause to his
chiropractor, and the symptoms appear too similar to symptoms from 2007-2010 to
suggest a different and distinct cause.

       Mr. Tutt’s medical records also confirm a gap in chiropractic care between
his visits on November 10, 2011, and December 4, 2013. See generally exhibits
62, 70, 72. Mr. Tutt contends in the Proposed Findings of Fact that the pain about
which he complained at his post-vaccination December 4, 2013 visit was the “most
severe.” Proposed Findings of Fact, ¶ 8(v) (citing Tr. 230). This is based on an
interpretation by Dr. Denbign based on his comparison of the notes taken at
different visits. See Tr. 230 (“Q. . . . [W]hich visit, from the subjective standpoint,
[was] the most severe reporting of headache and neck pain . . . ? A. That would be
the last visit in December 2013.”). However, Dr. Denbign did not provide a
detailed reason why this pain was more severe than his previous visits, other than
the fact that he was “having pain for several weeks with headaches [and] taking a
lot of Advil.” Tr. 229.4 Additionally, the medical records themselves do not
indicate significantly more severe pain at this visit as compared to many weeks’
worth of visits in, for example, 2011. Compare, e.g., exhibit 70 at 2 (“neck pain
achey stiff with occasional headaches several weeks taking a lot of Advil”
(December 4, 2013)), with id. at 1-2 (“last week tight CS and TS achey stiff” (May
3, 2011); “neck achey stiff with headaches upper back tight” (September 22,
2011); “upper back, neck achey stiff lumbar spine stiff” (October 26, 2011);
“achey stiff started yesterday” (November 10, 2011)). While the undersigned
credits Dr. Denbign’s testimony, the undersigned also views the
contemporaneously composed medical record notations as carrying more weight
than Dr. Denbign’s after-the-fact subjective interpretation of the relative severity

       4
        The mention of Advil is unique to the December 4, 2013 visit. However, an over-the-
counter medication is not a significant treatment.

                                              8
based solely on his reading of the notes. The symptoms described at the December
4, 2013 appointment do not appear significantly “more severe” than those in prior
years.

       Thus, the undersigned finds the facts Mr. Tutt proposes regarding the
appointment dates and symptoms reported at those appointments between 2007-
2011 to be accurate. The undersigned finds that the similarity between symptoms
reported at all chiropractic appointments—namely pain, stiffness, and aches, in the
neck, back, shoulders, and/or head—indicate continuous physical issues that
necessitated intermittent (though in some years, frequent) appointments to the
chiropractor. In other words, the medical records do not indicate separate,
unrelated medical issues as suggested by Mr. Tutt in the Proposed Findings of
Fact, see Proposed Findings of Fact, ¶ 8(j), but instead, ongoing issues
necessitating care. Finally, the undersigned finds there is insufficient evidence to
indicate that the pain complained of post-vaccination, at the December 4, 2013
appointment, was significantly more severe than the pain about which Mr. Tutt had
complained in earlier years.

      2. Pre-Vaccination versus Post-Vaccination Use of Sick Leave

       The parties further dispute the amount of sick leave Mr. Tutt tended to take
before his vaccination, as well as how often he tended to work from home during
that time. See Proposed Findings of Fact, ¶¶ 9, 12. The parties also disagree as to
whether Mr. Tutt took sick leave after his vaccination. See id. ¶ 16.

       While Mr. Tutt characterized that he “rarely” called in sick to work, id. ¶ 9,
Mrs. Tutt testified that he did not call out “frequently.” Tr. 22. She further stated,
“The only thing I recall is that if he had, you know, a head cold or something he
would try to do what he had to do for a short period and then take a half day or
reschedule something and work around that.” Tr. 22-23. His employment records
confirm occasional sick leave taken in 2013 prior to his vaccination. See Exhibit
60 at 35 (showing a year-to-date sick leave total of 75 hours (assuming “SickMin”
and “SickPO” are payroll codes for sick leave) on his last pay statement of 2013).
Additionally, she testified that he performed a significant portion of his work at
home before his vaccination. Tr. 23. Thus, contrary to Mr. Tutt’s assertions in the
Proposed Findings of Fact, the undersigned finds that Mr. Tutt seems to have taken
a relatively normal amount of sick leave before his vaccination, and that it was
common for him to work from home or out of the office.



                                          9
       The parties further disagree about whether Mr. Tutt missed work and took
sick leave the week of Thanksgiving. Proposed Findings of Fact, ¶ 16. Though
Mrs. Tutt testified that “[Mr. Tutt] was home and he took a couple of days, half
days, not full days, off. He came home from work early on Thanksgiving,” Tr. 26,
Mr. Tutt’s employment records show that he did not take sick leave during the pay
period that included Thanksgiving week. See Exhibit 60 at 33. His pay statement
for that pay period seems to indicate that he may have worked overtime on
weeknights and weekends, as denoted by the codes “S2WkdyNt” and
“S7WkndNt,” (as opposed to “SickMin” and “SickPO,” which show zero hours for
that pay period). Id. Additionally, Mr. Tutt confirmed that he did not take sick
leave after his vaccination. Tr. 131. Though Mrs. Tutt may honestly believe that
Mr. Tutt was home more than usual after his vaccination, with the combined
evidentiary weight of his employment and his own testimony, make it more likely
than not that he did not take sick leave after his vaccination.

      3. Petitioner’s Behavior During Trips after Vaccination

       The parties disagree over Mr. Tutt’s behavior during the week of
Thanksgiving. Proposed Findings of Fact, ¶¶ 17-19. Mrs. Tutt described Mr. Tutt
during the week of Thanksgiving as “pale,” “rubbing his shoulders,” “taking naps
frequently,” having headaches, and exhibiting “low energy.” Tr. 27-29. She
additionally testified that he believed he was experiencing flu symptoms as a result
of his vaccine. Tr. 37. Mr. Tutt testified to experiencing fatigue, as well as neck
and upper back pain during the week of Thanksgiving and characterized this pain
as “unusual.” Tr. 121-22. He did not, however, testify to experiencing flu-like
symptoms that week, or to verbally attributing any symptoms to his flu vaccine.
See id. He also did not testify to having headaches during the week of
Thanksgiving. See id. He did testify to experiencing a cough in the weeks
following Thanksgiving week. Tr. 124. Thus, the undersigned credits the
descriptions of Mr. Tutt’s behavior that are consistent between the testimonies of
Mr. and Mrs. Tutt—namely that he was experiencing fatigue, low energy, and neck
and upper back pain that caused him to rub his shoulders.

      The parties seem to agree for the most part on Mr. Tutt’s characterization of
his experiences during his trips to Aztec, NM; Pagosa Springs, CO; and San Diego,
CA. See Proposed Findings of Fact, ¶¶ 23-30. Mrs. Tutt testified that he
experienced increasing fatigue, coughing, and neck pain during this time, see Tr.
33, 36, 43-45, and did not partake in certain physical activities during the trips that
he normally would have, see Tr. 299. Respondent did not dispute any of these
contentions in the Proposed Findings of Fact. Therefore, the undersigned credits
                                          10
Mrs. Tutt’s testimony regarding Mr. Tutt’s behavior during the weeks following
his vaccination, and finds that Mr. Tutt experienced fatigue, coughing, and neck
pain during the few weeks after Thanksgiving week in which he travelled to Aztec,
Pagosa Springs, and San Diego.

      4. Petitioner’s Lack of Reporting Pain During Post-Vaccination Medical
      Appointments

        The parties seem not to dispute respondent’s contention that Mr. Tutt did not
report his pain symptoms to the two medical providers he visited to treat an upper
respiratory infection (“URI”) after his vaccination. See Proposed Findings of Fact,
¶¶ 34, 38. His medical records confirm that there was no mention of his neck or
upper back pain. Mr. Tutt visited Dr. Melissa Martinez on January 13, 2014,
seeking treatment for his URI. See exhibit 4 at 497. At this appointment, he
complained of a runny nose, cough, and tightness in his chest, but did not mention
any neck, shoulder, or back pain. See id. Mr. Tutt then visited a new primary care
physician on January 20, 2014. See id. at 471. At this visit, he reported fatigue,
mood symptoms, and anxiety, but did not mention any neck, shoulder, or back
pain. See id. Based on the medical records and lack of objection by petitioner in
the Proposed Findings of Fact, the undersigned finds that Mr. Tutt did not
complain about neck, shoulder, or back pain to his medical providers during his
first two post-vaccination medical visits on January 13, 2014, and January 20,
2014.

        Furthermore, because Mr. Tutt did not report neck or upper back pain to two
doctors in his January appointments, a reasonable inference is that Mr. Tutt was
not experiencing neck or upper back pain from approximately January 1, 2014
through January 20, 2014. As discussed above, appellate authorities have reasoned
that if a person were experiencing symptoms, the person would seek treatment for
those problems from a medical professional and the medical professional would
create a record of the complaint. When the medical record does not show a
complaint, a special master may find that the person was not experiencing the
symptom around the time of the medical appointment. This logic fits Mr. Tutt’s
situation, especially for the January 20, 2014 visit to establish primary care. In this
initial visit, Mr. Tutt, presumably, was motivated to provide as complete and
accurate a history as possible. See Tr. 160-67, 207-08 (Mr. Tutt’s testimony about
this visit).




                                          11
      5. Onset of Petitioner’s Upper and Lower Extremity Weakness

       Finally, the parties seem not to dispute respondent’s contention in the
Proposed Findings of Fact that “[t]he onset of Mr. Tutt’s upper and lower
extremity weakness occurred over a 24-hour period from January 21-22, 2014.”
Proposed Findings of Fact ¶ 43. The medical records seem to confirm this onset.
He visited the emergency department on January 22, 2014, at which visit the
attending doctor noted “neck pain” and “3/5 bilateral upper and 2/5 bilateral lower
extremities,” as well as a diagnosis of “weakness.” Exhibit 5 at 253. Therefore,
given the lack of complaints of these type at his medical appointment on January
20, 2014, see supra Part 4, it is reasonable to conclude that the onset of his upper
and lower extremity weakness occurred between the January 20 visit and the
January 22 visit to the emergency department (i.e. between January 21-22, 2014).
Therefore, based on Mr. Tutt’s medical records and the lack of objection by
petitioner in the Proposed Findings of Fact, the undersigned finds that the onset of
Mr. Tutt’s upper and lower extremity weakness occurred between January 21-22,
2014.

                                    Conclusion

      For the reasons explained above, the undersigned finds that:

   (1) Mr. Tutt’s medical records indicate continuous issues with neck, back,
       shoulder, and/or headache pain that necessitated intermittent, but frequent,
       visits to the chiropractor between 2007-2011;
   (2) Mr. Tutt did not visit the chiropractor between his visits on November 10,
       2011, and December 4, 2013;
   (3) the pain complained of at his post-vaccination, December 4, 2013
       chiropractor visit was not significantly more severe than the pain in his
       prior visits;
   (4) Mr. Tutt took a reasonable amount of sick leave before his vaccination and
       did not take sick leave after his vaccination;
   (5) Mr. Tutt experienced fatigue, low energy, and neck and upper back pain
       during Thanksgiving week, and continued to experience these symptoms
       along with a developing cough in the weeks following Thanksgiving;
   (6) Mr. Tutt did not complain about neck, shoulder, or back pain to his
       medical providers during his first two post-vaccination medical visits on
       January 13, 2014, and January 20, 2014. Therefore, he was not
       experiencing neck, shoulder, or back pain from January 1, 2014 through
       January 20, 2014; and
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   (7) the onset of Mr. Tutt’s upper and lower extremity weakness occurred
       between January 21-22, 2014.

The parties are ordered to provide this ruling to any expert they retain or have
retained. If the expert’s opinion is not consistent with these findings of fact, the
opinion is likely to not be persuasive. See Burns v. Sec’y of Health & Human
Servs., 3 F.3d 415, 417 (1993) (holding that the special master did not abuse his
discretion in refraining from conducting a hearing when the petitioner’s expert
“based his opinion on facts not substantiated by the record.”).

      A status conference is set for Tuesday, February 25, 2020, at 2:00 PM
Eastern Time. Mr. Tutt should be prepared to propose the next step in this case.

      IT IS SO ORDERED.

                                               s/Christian J. Moran
                                               Christian J. Moran
                                               Special Master




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