master shall award compensation if they find on the record as a whole and by a preponderance of the evidence the requirements for a subsection eleven statute that no factor unrelated to the vaccine was the actual cause and congress added the special masters cannot make these findings based on the claims of petitioner alone unsubstantiated by medical records or medical opinion how this claims  petition or long language that is resolved we believe is the issue before this court is just to cher's contention that once petitioner has submitted her medical records or has filed a medical opinion the prohibition of fining for petitioner based on her claims alone is satisfied it does not need to be revisited during the case every time the special master is deciding if that what respond appears to be arguing what we believe judge smith accepted is that the petitioners testimony by itself cannot be used to establish any of the fast that go into the special master's decision when he or she is making that decision on the record as a whole the less there is a corroborating medical record that independently establishes that fact it should be noted that and more than thirty years of applying a statute and doing this this work that this court has never that particular interpretation of this statute has never been adopted by this court congress made it clear that special masters are required to make their rulings on the record as a whole and of course petitioners testimony as part of that record evidence an example of what respondent claims to be legal error is found at page twenty four dollars especially american woman's decision which the court conform to page thirty eight at the bottom of that page it reads and i quote petition to share testified that she can then use that home exercise plan for over a year and that she remains symptomatic for the duration i found petitioners testimony on this point to be credible and quote this is not the only evidence american on the six month issue however to focus for this court this foreign of credibility by the special masters at the heart of this appeal this was an important testimony to be sure going is kirby in relation to the establishment of a six month requirement in her case we produce a home exercise records however there are no there are no records from a medical provider where the dates that she did her home exercise program are recorded and there are no records from a medical provider which records the level of her neuritis was consistent with his understanding of that injury now i know he wasn't a treating physician but can't an expert who testifies that the patient's symptoms as as articulated by the patient are consistent for ms kirby when you're dealing with a nerve injury however so it is as far as corroborating evidence for this particular case is concerned to share obviously agrees that there is corroborating evidence there's more evidence the reason that i point to this particular record on the home exercise program is because i think it focuses the real issue here application of this language in subsection thirteen a about the petitioners testimony not being able to be used yes and that's why i focused on the home exercise program there are no corroborating medical records fifteen notwithstanding a number of medical appointments in that period why is it reasonable to credit is kirby's  testimony when one might have expected and that might not be the proper formulation some of those medical records to record a continuing radio on the right  injury there was no more treatment for scurvy was told that it was getting better she was following her home exercise program there was no reason for her to continue to seek treatment for that her doctor already knew about it it was already in  might have been for a general physical exam why would not that record have recorded this problem and yet i think you agree it doesn't be she may i think this testimony to the effect that she was just going to get her f l s a certification paperwork i'm not sure that's a complete answer to the generality of this physical exam and therefore whether it might be significant that there's no mention at that point of either the continuing home exercise or continuing  it doesn't say the thing that would create a problem and special master horner would have needed to deal with this if it says i checked her and asked her about her radio nerve injury and she informed me that it was completely healed then she turns around and testifies that it was not in that it continued on for a year that would be problematic but that's not the facts of this case and her record that is silent is just a record that scien doesn't support and in one direction or the other she doesn't have to complain about everything that she's ever told her doctor before when she's going in for f l s a paperwork to be filled out and i think that was special master horner's decision that was i think she commented that was certainly the flavor of how he addressed that there are no records here that directly contradict her testimony are records where we would lie if she knew she was going to go into a legal proceeding later on maybe she would have brought that up every time even though she was there for a different reason but she was there for a different reason and she was told that she couldn't have it that there was no further treatment for this and she during their home exercise that's what she did i'd like to reserve the rest of my time for a bottle thank you  appeal involves two separate statutory requirement under the vaccine act st the petitioner show that the injury persisted for at least six months and nd that she can meet her burden of proof based on more than her testimony alone word alone and a letter including a letter from an expert opinion post dated after the fact were not sufficient to show that the sentence persisted beyond six months when contemporaneous medical claims decisions which as you know are not presidential for us so putting aside non presidential decisions what was your position correct that and i'm not even how would you state y position every significant fact bearing on the medical question has to be corroborated as opposed to corroboration of of you know in general  flexible record as a whole kind of corroboration not every single fact kind of corroboration yes so the government's position is that as to think of petition our last show on the causation question the six months and there are the is a separately carved out that the tory section and congress you know explained why it why they did so that it only intended to compensate injuries that were sufficiently severe and not to compensate those injuries that while whether they be mild or significant in the short run but i just need to be concrete at least the way i'm remembering it you can correct me if my recollection is wrong there certainly corroboration from october through into december of the issue with the the some in the right arm and the radio on the right as and at that point the paper records go silent  but the expert for this kirby said it's actually read medically reasonable that the condition would continue past december for you know basically until april which i guess is the six month period why is that insufficient why should that be legally insufficient corroboration under under the statutory term provision that you're talking fact that was not there to speak to contemporaneously he can only except under a set of facts he can provide an opinion as to whether that's medically reasonable of course the government does agree strongly that that opinion was medically by litigation expert is not ponder an evidence that a fact actually occurred because all he can do is say i am expecting and he says very clearly in the record my testimony i think my testimony  is based on what she said and the contents of of missed kirby's testimony were were incredibly vague unsupported and could not supplant what we do know from the medica records and i do disagree that we are dealing with a complete with complete silence after december of two thousand and thirteen the january th team's record with miss kirby's primary care provider does contain it does contain real information this is not the case now as mr gage has stated if mr kirby had stated as nothing there's no problems with my right arm was never discussed  again it's gone we wouldn't be here this is also not the case where we have a complete omission and has dropped off of records and i should know that moved to another state loses insurance we have nothing to go on she's before her primary care provider a physical examination there is a review of system where specifically neurological symptoms were inquired about and that's the source of pain that she had there was no logical those that were negative for numbness there's no that's real information the real objective information for the church more you're talking about the document on ninety one and ninety two is that right of ok and so you said neurological systems were tested and she didn't indicate that she had any neurological problems or hands that is that right yes and the it doesn't does that mean the does i mean she does not have dizziness or it or there are no no nor logical symptoms except for dizziness how am i to understand that language inquire about but by the count i'm the counsel look at all the others cardiovascular not present dash chest pain i bet that doesn't mean that cardiovascular issues are not present except she does have chest pain right that that would be the really strange if she was complaining about chest pain and there was no other development or testing ordered gastrointestinal not present dash abdominal pain and change in val habits if she's got chest pain and abdominal habits and a cough and difficulty breathing on exertion and i paint your pain runny nose nasal congestion you see the point i'm making where it says not dash i don't think it means not present except these things are present i think it means these are the things i've asked her about and they're not present isn't that it completely reasonable reading  record tells you she was asked about any neurological symptoms in particular as opposed to only inquired about whether she has any dizziness it would the assumption would just be based on the standard of care and  what is done in a review of system and what points on each of those categories are inquired about and as and understand their practice and that would be a reasonable assumption see if your mother goes on a time out you're telling me that would be a reasonable presumption of how i should and what was done here and what this medical record actually means to you put any evidence into that effect because you want me to read this document and to understand it silence and in particular your argument in this case was the fact that they reviewed neurological symptoms and she didn't point to any continuing issues in her hand ought to be construed as her affirmatively denying that they existed or affirmatively not in response to basically what feels like a direct question not responding but that just seems quite inconsistent with the document itsel physical examination of miss kirby provided an opportunity for miss kirby to both affirmatively state explain disgust pain and opportunity for practitioners to identify you not only are medical records presumed to be accurate they also are presumed to be complete everybody still on ok they are presumed to be complete in the sense that the medical records present all the problems of the patient completeness is presumed due to a series of propositions st when people are ill they see a medical professional nd when people see a doctor they report all of their problems to the doctor rd having heard about the symptoms the doctor records records what he or she was told so it is the government's position and based on what you're explaining it seems to be that if she had met with a doctor and she had any continuing  some related or other neurological issues the fact is since the record is silent as to that we should presume they don't exist that's what robi says so is it the government's view that this was clear coats and compelling that is not the case here miss miss kirby was not the special master acknowledged her testimony made it difficult if not impossible to affix an end point to her pain more isn't it possible that you don't remember precisely what it ended but you certainly remember it lasted longer than six months which was her testimony well it may be reasonable to assume that mrs kirby couldn't ago can you give us a month any year or can you do that and no i don't remember she says day she believes it was more than a year but there is that there is nothing to substantiate that and what the government i asking of the petitioner is not insurmountable and it is a change in other cases in which there is more as the c s e cited again and the obscene decision corporation does not have to says anyone who has this condition i would expect for it to last for at least a year or at least six months or it is completely reasonable that his condition would extend that long based on the nature of the condition is that not why is that not sufficient for corroboration and we have medical records for the st several months she's saying it went on longer and there's a medical expert who says her testimony is completely consistent with the trajectory of the  injury that he would expect why isn't under the circumstances that sufficient but whether it did in this kirby is a matter that he can't supply based on a litigation with you and statement of medical problem possibility looking at what actually occurred in this kirby and the fact that her case becomes becomes a wholly unsupported area of testimony in which there is nothing but her word that lacks any specificity to explain or substantiate the pain and where the medical records do show her continuing on seeking medical attention and not and not treating the problem that she had once treated rather acutely the six month requirement being mapped and as part of that disagreement suppose we could call that there was no reversible error under the differential difference to the court of federal claims decision so why wouldn't we decide that here with which and it in part because it seems like it may come down to the very  that that factual observation about what happened at a particular flu vaccine in a flu vaccine office was not likely to have happened from when you're talking about dr king's forms testimony about whether she still had the pain in to into april as opposed to whether it was medically reasonable that that would occur new source of injury miles radial nerve injury resolved and that's that's what the record there is out and for the the special master to have found for a petition or against the weight of that the the only way that this really works are your honors if the special masters are given the latitude to look at the record as a whole and consider all of the evidence and that includes petitioners testimony we have numerous cases where the medical records are silent on key issues that things were d recorded somebody may not have been able to get to a medical provider  that cannot be a roadblock to a petition or the special master perhaps it's easier in a case where the medical records establishes every relevant point d but we don't have that luxury in this program this is the record as a whole by the ponderous of the evidence that has been the rule and that needs to stay the rule that is what special master horner did not do you had to do you have in mind any particular without a contemporaneous medical record i don't remember that i don't think that's ever been brought up to this court that that couldn't happen i believe it happens all the time  what happens if for instance in this case the was the injury immediate or was it a two day onset well there are records that say all things in this case and the special master's resolution to that was to take the testimony or petition or there is absolutely nothing inappropriate about that but sitting here right now i know i can get you some if you want to do it but i didn't come prepared for that your honor i'm sorry my mind is drawing a blank but it happens all the time how long did it last how severe  was the pain did you suffer pain and destruction or that making this type of injury or that injury more likely we feel in those blanks every day in this program by petitioners testimony and we do it with expert testimony on what's most likely and we use a medical records but you have to it has to be a mix it just can't it would be unworkable if it has to be medical record corroborated in order to establish the facts special master steps what they're trained to do and that's what they do and that's that's the only way that this is workable your honor council has more let me ask you one final question and it's about rosie the government would like us to adopt the robie presumption that is definitely not what are correct caucus decision was about the car caucus decision was about when there is actually an articulation in the medical record by the patient that they in fact have a particular illness a particular time or don't have a particular illness at a particular time i believe that case was about when the onset of symptoms occurred and those medical records repeatedly put them outside the window that was deemed appropriate multiple records reporting and in the caracas case and the robie special master presidential decision which the government would like us to death to adopt in order to succeed in this case i think goes quite a bit further it isn't that medical records are presumed to be accurate and they are also presumed to be complete the idea being that if you go to any doctor no matter what the issue you would tell them every single ailment that you might otherwise have that's the standard the government would like to apply in this case can you speak to the circumstances under which or whether or not you think we ought to adopt such a presumption it was a case out of this office back in the ninety's we represented the curse family that would do the robie morph of the curse doctrine would not be workable your honor it is also not accurate carus simply says the extremely on surprising thing that everybody learned st year law students know that there  reason there's an exception to the hearsay rule for medical records and that's because there is something to share of reliability there but they're not infallible they are routinely in fact probably most of the times not complete  and the the to say that we're going to create a legal presumption in this program that there's a fully articulated  about the person's overall health every time they visit a doctor well that's not how you know we have fifteen minutes of medical appointments these days with computer generated records it's utterly on realistic course that that's not how medicine is practiced on fortunately for us all i suppose medical doctors don't know that they're creating a record for legal proceedings and we