## IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS

No. 08-882V Filed: September 10, 2014

*******************************************************
LUIS VERGARA and JACKELINE MORA * ANGARITA, parents and natural guardians, * J.A.V., a minor, *

* Petitioners, * Autism; Petitioners ’ Motion for a * Decision Dismissing the SECRETARY OF THE DEPARTMENT * Insufficient Petition; Proof of OF HEALTH AND HUMAN SERVICES, * Causation; Vaccine Act * Entitlement; Denial Without Respondent. * Hearing

*

******************************************************* Donald Gerstein, Esq., Richard Gage

, P.C.

, Cheyenne, WY for petitioners. Justine Daigneault, Esq. , U.S. Department of Justice, Washington, DC for respondent.

DECISION 1

Vowell , Chief Special Master:

On December 11, 2008, petitioners filed a Petition for Vaccine Compensation in

the National Vaccine Injury Compensation Program (“the Program”)

, 2 on behalf of th ei r minor child J.A.V. The information in the record, however, does not show entitlement to an award under the Program.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioners ha ve 14 days to identify and move to delete medical or other information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the requirements of that provision, I will delete such material from public access.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa

of the Act.2

On May 5, 2014

, I issued a Ruling on Facts and Order, which rejected petitioners’ con tention that the encephalopathy referenced in J.A.V.’s medical records constitutes a Table encephalopathy and also rejected some of their testimony provided at a hearing held on February 20, 2013 in Miami, FL. I ordered petitioners to file an expert report by no later than July 14, 2014, addressing their original causation claim: that one or more of the vaccines that J.A.V. received in April 2007 can cause an autism spectrum disorder, and that they did so in J.A.V.’s case

. I later ordered to extend petitioners’ deadline to file an expert report until September 12, 2014.

On September 9, 2014, petitioners filed a Motion for Decision Dismissing Petition. To receive compensation under the Program, petitioners must prove either 1)

th at J.A.V. suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury

Table

– corresponding to one of J.A.V.’s vaccinations, or 2) that J .A.V. suffered an injury that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa11(c)(1). An examination of the record did not uncover any evidence that J.A.V. suffered a “Table Injury.” Further, the record does not contain a medical expert’s opinion or any other persuasive evidence indicating that J.A.V.’s alleged injury was

vaccine-caused.

Under the Act, petitioners may not be given a Program award based solely on the petitioners ’ claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician. § 300aa-13(a)(1). In this case, because there are insufficient medical records supporting petitioners ’ claim, a medical opinion must be offered in support. Petitioners , however, ha ve offered no such opinion.

Accordingly, it is clear from the record in this case that petitioners failed to

demonstrate either that J.A.V. suffered a “Table Injury” or that J.A.V.’s injuries were “actually caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

s/ Denise K. Vowell

Denise K. Vowell Chief Special Master