  United States Court of Appeals
      for the Federal Circuit
                ______________________

        STACY CARSON AND AMY CARSON,
        as legal guardians for KIT CARSON,
                 Petitioners-Appellants,

                           v.

      SECRETARY OF HEALTH AND HUMAN
                 SERVICES,
              Respondent-Appellee.
            ______________________

                      2010-5089
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 02-VV-873, Judge Mary Ellen Coster Wil-
liams.
                ______________________

               Decided: August 28, 2013
               ______________________

    DAVID P. MATTHEWS, Matthews & Associates, of Hou-
ston, Texas, for petitioners-appellants.

    HEATHER L. PEARLMAN, Senior Trial Attorney, Torts
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. With
her on the brief were STUART F. DELERY, Principal Deputy
Assistant Attorney General, RUPA BHATTACHARYYA,
2                                      STACY CARSON   v. HHS

Director, VINCENT J. MATANOSKI, Deputy Director, and
CATHARINE E. REEVES, Assistant Director.
                ______________________

     Before NEWMAN, CLEVENGER, and WALLACH, Circuit
                        Judges.
    Opinion for the court filed by Circuit Judge WALLACH.
     Dissenting opinion filed by Circuit Judge NEWMAN.
WALLACH, Circuit Judge.
     Parents Amy and Stacy Carson (“Petitioners”) filed a
petition for compensation on behalf of their son, Kit
Carson, under the National Childhood Vaccine Injury Act,
42 U.S.C. §§ 300aa–1 to–34 (2006) (“Vaccine Act”). The
Chief Special Master dismissed the petition as untimely
filed. The United States Court of Federal Claims affirmed
and dismissed the Petitioners’ petition for review. See
Carson v. Sec’y of Health & Human Servs., 97 Fed. Cl.
620, 621 (2010). We affirm.
                       BACKGROUND
    Kit Carson was born on May 22, 1996, and received
numerous vaccinations between his birth and June 4,
1997. 1 Kit’s pediatricians noted that he was “‘[b]ehind in
speech’” at his 18-month check-up, and “‘speech de-
lay[ed]’” at his 24-month check-up. Carson, 97 Fed. Cl. at
621 (quoting Carson v. Sec’y of Health & Human Servs.,


     1  This background is drawn from the Court of Fed-
eral Claims’s opinion. A more detailed description of the
Petitioners’ history can be found in the Court of Federal
Claims’s opinion and in the Special Master’s Decision. See
Carson, 97 Fed. Cl. at 620; Carson v. Sec’y of Health &
Human Servs. No. 02-873V, 2009 U.S. Claims LEXIS 449
(Fed. Cl. Spec. Mstr. Aug. 26, 2009) (“Special Master’s
Decision”).
STACY CARSON   v. HHS                                     3
No. 02-873V, 2009 U.S. Claims LEXIS 449, at *4 (Fed. Cl.
Spec. Mstr. Aug. 26, 2009) (“Special Master’s Decision”)).
On May 25, 1999, at Kit’s three-year check-up, Dr. Page,
Kit’s pediatrician, noted Kit’s “severe language delay,”
and referred him to the Developmental Evaluation Center
in Asheville, North Carolina. Special Master’s Decision at
*5. On September 13, 1999, Kit was evaluated by a
psychologist for placement in his school district, at which
time the psychologist again noted Kit’s language delays
(“IEP evaluations”). Kit was diagnosed with autism
spectrum disorder on April 26, 2001. Petitioners, on
behalf of their son, filed a petition for compensation under
the Vaccine Act on July 22, 2002.
     After a deferral of proceedings, Respondent moved to
dismiss the petition under Rule 21(b) of the Vaccine Rules
of the United States Court of Federal Claims on the
ground that Petitioners filed their petition more than 36
months “after the date of the occurrence of the first symp-
tom or manifestation of onset or of the significant aggra-
vation of such injury.” See 42 U.S.C. § 300aa–16(a)(2).
The Chief Special Master relied upon the written reports
and oral testimony of Petitioners’ medical expert, Dr.
Mumper, to determine “the first event objectively recog-
nizable as a sign of a vaccine injury.” Special Master’s
Decision at *7. Relevant to the Chief Special Master’s
decision was Dr. Mumper’s testimony that: (i) Kit Carson
was “exhibiting speech delay” in May of 1999; (ii) speech
delay is one symptom of autism; and (iii) difficulty with
speech was “one of the ways [Kit Carson’s autism] mani-
fested itself.” Id. at *15. Based on this testimony, the
Chief Special Master concluded “that the first symptoms
of Kit’s autism spectrum disorder are recorded in May of
1999 . . . . Thus, the petition in this matter needed to be
filed in May of 2002 to be timely filed in accordance with
§ 16(a)(2).” Id. at *16–17.
    Petitioners appealed the Chief Special Master’s deci-
sion to the Court of Federal Claims. The Court of Federal
4                                         STACY CARSON   v. HHS
Claims found that the Chief Special Master properly
dismissed the petition as untimely and sustained the
decision. Carson, 97 Fed. Cl. at 625. Petitioners then filed
the present appeal. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(3) and 42 U.S.C. § 300aa–12(f).
                         DISCUSSION
    The Vaccine Act established a program to increase the
safety and availability of vaccines, and through the Vac-
cine Injury Compensation Program claimants may get
compensation for vaccine-related injuries or death. See 42
U.S.C. §§ 300aa–1, 300aa–10(a). The program limits the
period during which a petitioner may file for compensa-
tion:
    [(a)](2) . . . if a vaccine-related injury occurred as a
    result of the administration of [a vaccine set forth
    in the Vaccine Injury Table that was administered
    after October 1, 1988], no petition may be filed for
    compensation under the Program for such injury
    after the expiration of 36 months after the date of
    occurrence of the first symptom or manifestation of
    onset or of the significant aggravation of such in-
    jury . . . .
42 U.S.C. § 300aa–16(a)(2) (emphasis added). 2


    2    The dissent states that “[a]t a minimum, equitable
tolling should be applied to this petition.” Dissenting Op.
at 10. Although this court held that equitable tolling is
available under the Vaccine Act in certain circumstances,
Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322,
1344–45 (Fed. Cir. 2011) (en banc), “we find no basis in
equity for doing so” in this case, see id. at 1344 (holding
the same). The court in Cloer held that the unfairness of
barring a claimant from asserting a diligently pursued
Vaccine Act claim was not, by itself, “the sort of circum-
stance that might merit equitable tolling.” Id. Rather,
STACY CARSON   v. HHS                                     5
    “We review an appeal from the Court of Federal
Claims in a Vaccine Act case de novo, applying the same
standard of review as the Court of Federal Claims applied
to its review of the special master’s decision.”
Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d
1339, 1345 (Fed. Cir. 2010). We give no deference to the
Court of Federal Claims’s or Special Master’s determina-
tions of law, but uphold the Special Master’s findings of
fact unless they are arbitrary or capricious. Id.
     In Markovich, this court established a standard to de-
termine when the “first symptom” occurred for purposes
of the Vaccine Program’s statute of limitations. See Mar-
kovich v. Sec’y of Health & Human Servs., 477 F.3d 1353,
1360 (Fed. Cir. 2007). The court rejected a subjective
standard that focused on the parent’s view as to when the
first symptom presented and instead adopted “an objec-
tive standard that focuses on the recognized standards of
the medical profession at large . . . .” Id. at 1360. The
court held that “‘the first symptom or manifestation of
onset,’ for the purposes of § 300aa–16(a)(2) is the first
event objectively recognizable as a sign of a vaccine injury
by the medical profession at large.” Id.
      Petitioners do not dispute that Kit demonstrated
speech delay more than 36 months before they filed their
petition. Additionally, Petitioners’ expert medical witness
concurred that Kit’s speech delay was the first symptom
of his autism. At trial, Respondent’s counsel questioned
Dr. Mumper on the relationship between Kit’s speech
delay and his ultimate autism diagnosis:




“‘some extraordinary circumstance’” must also be present.
Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). Petitioners have not argued that any such cir-
cumstance exists in this case.
6                                      STACY CARSON    v. HHS
    Q: Would you . . . agree with me . . . that prior to
    July of 1999, Kit Carson was exhibiting speech de-
    lay?
    A: He was exhibiting speech delay, that’s correct.
    Q: Okay. And I believe I heard you say that you
    would agree that the speech delay can be a symp-
    tom of autism; is that correct?
    A: It can be one symptom of autism, that’s true.
    Q: And would you agree that this child, Kit Car-
    son, one of the ways his autism manifested itself
    is in his difficulties with speech?
    A: Correct.
Special Master’s Decision at *15–16. The Chief Special
Master observed that “Dr. Mumper essentially conceded
that Kit’s language delay, which was noted in May of
1999 by his treating pediatrician, was more likely than
not the first symptom or manifestation of his autism
spectrum disorder.” Id. at *15.
    On appeal, Petitioners argue the medical community
at large would not recognize Kit Carson’s speech delay as
evidence of a vaccine injury. Pet’s Br. 11. Petitioners
posit that “[s]peech delay is too vague and common of an
occurrence to be considered the first objectively recog-
nizable symptom of the vaccine injury.” Id. at 18. Accord-
ing to Petitioners, “[t]he first objectively recognizable
symptoms of social impairments and lack of interest in
toys were observed during the IEP evaluations in Sep-
tember 1999; the petition was filed in July 2002, well
within the 36 month statute of limitations.” Id. at 19.
    However, the Chief Special Master made a factual
finding to the contrary, stating: “[T]he first objectively
recognizable symptom or manifestation of onset of Kit’s
autism was exhibited no later than May 25, 1999 when
Kit was noted by his pediatrician Dr. Page to have ‘severe
STACY CARSON   v. HHS                                     7
language delay’. . . .” 3 Special Master’s Decision at *19–
20. This finding was “based on the medical records and
Dr. Mumper’s testimony,” id. at *19, and was not arbi-
trary and capricious.
     Petitioners effectively argue that speech delay cannot
be a “first symptom” because it is an insufficient basis for
a diagnosis of autism. See, e.g. Pet’s Br. 17 (arguing
speech delay “is too broad and common of a complaint for
a physician to know that this particular child had au-
tism”) (emphasis added). However, as explained at length
by this court in the past, it is the first symptom or mani-
festation of an alleged vaccine injury, not first date when
diagnosis would be possible, that triggers the statute of
limitations under § 300aa–16(a)(2). In Markovich, this
court concluded that “[b]ecause Congress is presumed to
have intended disjunctive meaning by using the disjunc-
tive word ‘or,’ we interpret the words ‘first symptom’ and
‘manifestation of onset’ as referring to two different forms
of evidence of injury.” Markovich, 477 F.3d at 1357. This
court explained that “[a] symptom may be indicative of a
variety of conditions or ailments, and it may be difficult
for lay persons to appreciate the medical significance of a
symptom with regard to a particular injury,” whereas “a

   3     The dissent appears to disagree with the Chief
Special Master’s finding, stating instead that the medical
community would not recognize language delay alone as
indicative of autism. See Dissenting Op. at 6–7. It relies
on Dr. Mumper’s testimony and the Diagnostic and Sta-
tistical Manual of Mental Disorders, both of which show
that a diagnosis of autism requires more than a speech
delay. The date of possible diagnosis, however, is not the
controlling inquiry. Rather, as stated above, the perti-
nent question is whether the medical community would
recognize speech delay as a symptom of autism. The
Chief Special Master found that it would. See Special
Master’s Decision at *19–20.
8                                        STACY CARSON   v. HHS
manifestation of onset is more self-evident of an injury
and may include significant symptoms that clearly evi-
dence an injury.” Id. We additionally noted that the first
symptom or manifestation of onset might include subtle
symptoms that a petitioner would recognize “only with
the benefit of hindsight, after a doctor makes a definitive
diagnosis of injury.” Id. at 1358 (internal quotation marks
and citation omitted). 4
     Petitioners argue that “[t]he issue in the case at bar is
not the Petitioners’ appreciation of the significance but
that multiple medical providers did not appreciate the
significance.” Pet. Br. 17. There is no question that
speech delay can be indicative of several conditions, and
in some circumstances may even be normal. In the in-
stant case, however, it was not arbitrary and capricious
for the Chief Special Master to find that the severe speech
delay observed on May 25, 1999, was the first objectively
recognizable symptom of autism, the alleged vaccine
injury. That Kit’s doctors did not diagnose Kit with

    4   To the extent the Court of Federal Claims af-
firmed on the basis that a “first symptom” need only be
recognizable by the medical community “with the benefit
of hindsight,” Carson, 97 Fed. Cl. at 625, this court de-
clines to decide whether hindsight is adequate, or instead
whether the “first symptom” must be recognizable by the
medical community as indicative of the alleged vaccine
injury at the time the symptom occurs. See Markovich,
477 F.3d at 1360 (stating the “first symptom” must be
“recognizable” by the medical profession at large). It is,
however, clear that there is no need for the symptom to be
contemporaneously recognized by the medical community.
See Wilkerson v. Sec’y of Health & Human Servs., 593
F.3d 1343, 1345–46 (Fed. Cir. 2010) (rejecting Petitioner’s
argument that the statute of limitations was not triggered
by a “first symptom” unless the medical community in
fact recognized it as such at the time it occurred).
STACY CARSON   v. HHS                                    9
autism until some time later does not alter the fact that
this symptom was evident by May 1999. 5
                        CONCLUSION
    The Chief Special Master’s dismissal of this claim and
the Court of Federal Claims’s affirmance were in accord
with law, were neither arbitrary nor capricious, nor was
there any abuse of discretion. The Court of Federal
Claims’s decision is therefore
                        AFFIRMED




   5     In Markovich, the first symptom of petitioner’s
seizure disorder was a first episode of repeated eye blink-
ing; this court stated that “the testimony of Dr. Corbier
and others confirms that Ashlyn’s eye blinking episode on
July 10, 2000 was objectively recognizable by the medical
profession at large as constituting the first evidence of
vaccine injury onset.” Markovich, 477 F.3d at 1360. This
court later clarified, “[w]e do not read Markovich as
requiring in each case a showing of the date on which the
medical profession at large had such a recognition [of the
symptom],” explaining that “[t]he fact that such recogni-
tion may have occurred some time after the symptoms
first occurred does not undermine the medical judgment
upon which the decision in this case was based.” Wilker-
son, 593 F.3d at 1345–46.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

        STACY CARSON AND AMY CARSON,
        as legal guardians for KIT CARSON,
                 Petitioners-Appellants,

                            v.

      SECRETARY OF HEALTH AND HUMAN
                 SERVICES,
              Respondent-Appellee.
            ______________________

                       2010-5089
                 ______________________

    Appeal from the United States Court of Federal
Claims in No. 02-VV-0873, Judge Mary Ellen Coster
Williams.
               ______________________

                Decided: August 28, 2013
                 ______________________

NEWMAN, Circuit Judge, dissenting.
     The court today holds that the statute of limitations
starts to run before the fact or even the likelihood of
vaccine-related injury is recognizable by medical profes-
sionals. Thus the court holds that behavior that the
medical community did not associate with a vaccine-
related injury and “may even be normal” can qualify as a
“first symptom” of vaccine-related injury for purposes of
commencement of the three-year limitations period of the
2                                      STACY CARSON   v. HHS
Vaccine Act. The result is that in the case of Kit Carson
the limitations period ended less than a year after the
evolving combination of symptoms was recognized as a
possible vaccine injury. The ostensibly tardy filing of Kit
Carson’s claim occurred only two months after the end of
the retrospectively-initiated three-year period.     At a
minimum, even on the court’s theory that the limitations
period started before any injury was recognized, equitable
tolling should be available in such circumstances. Fair-
ness and common sense demand no less.
    It cannot have been the legislative intent that Vaccine
Act compensation is available on the first appearance of a
“symptom” that “may even be normal.” Neither can it
have been the legislative intent that the period of limita-
tions starts to accrue during a period of normal behavior
or unresolved symptoms of unknown significance. Yet my
colleagues so hold, on their retrospective finding that Kit
Carson’s symptom of delay in speech indicated autism,
although that diagnosis was rejected by an impressive
number of professionals.
    It cannot reasonably be argued that Kit could have
claimed vaccine injury compensation during that initial
period of delayed speech, which was viewed at the time as
reasonably-normal development. 1 A limitations period
cannot start to run before the existence of the cause of
action that it limits.




    1   Fifteen percent of children between the ages of 24-
29 months experience language delay. Buschmann, Jooss,
et al, Children with Developmental Language Delay at 24
Months of Age, 50 Journal of Developmental Medicine &
Child Neurology, 223 (2008).
STACY CARSON   v. HHS                                   3
                            I
     The facts are not in dispute. By the age of twelve
months, Kit had received a schedule of vaccines that
included Hepatitis B, DTP-Hib, OPV, H-Flu B, DTaP,
MMR and Varicella vaccines. Kit’s developmental mile-
stones were within normal parameters for his four, six,
nine and twelve-month pediatric well-child visits. On
December 1, 1997, at the eighteen-month visit, the pedia-
trician recorded that Kit was “[b]ehind in speech.” At the
two-year visit on June 16, 1998 the pediatrician recorded
that Kit was “speech delayed.” At Kit’s three-year visit,
on May 25, 1999, the pediatrician observed Kit to have
“Severe language delay – Expressive.”
    In September 1999 Kit was evaluated as part of an
Individualized Education Program, and the psychologist
observed that Kit “interacts with toys and uses imagina-
tive play with rolling toys, but does not attend to me or
interact with me unless it is to get him something he
wants.” The psychologist wrote that Kit “appears to have
well developed fine motor manipulative skills” but that
“language delays are considerable and pervasive.”
     On May 3, 2000 Kit was examined again by his pedia-
trician, who concluded: “Expressive language delay, no
other dx appropriate.” On October 30, 2000 Kit under-
went a battery of neurological tests including an EEG,
MRI, and brainstem auditory test. All test results were
within normal parameters. The examining neurologist
wrote: “He is alert, very interactive and generally pleas-
ant, and spent much of the examination playing with
several plastic toys.” The neurologist concluded that Kit
was “best classified at this time as pervasive developmen-
tal delay affecting primarily speech and language. He
does not appear to meet criteria for autism.” The neurol-
ogist also stated that Kit “has had extensive laboratory
evaluation and little more is warranted at this time.” On
December 11, 2000 Kit underwent genetic testing, which
4                                       STACY CARSON   v. HHS
concluded that “chromosome morphology appeared nor-
mal.”
    From June 21 to July 21, 2000 Kit underwent a series
of evaluations at the University of North Carolina. The
evaluations included a behavioral rating scale designed to
identify children with autism, the Childhood Autism
Rating Scale, and a developmental test designed specifi-
cally for autistic and communication handicapped chil-
dren, the Psychoeducational Profile Revised. The clinic
determined that the tests were inconclusive, but indicated
a need for further assessment as “Kit demonstrated a
number of behaviors often observed in children with
autism spectrum disorder.” On April 23, 2001, the Clini-
cal Supervisor conducted a follow-up evaluation and
concluded, on April 26, 2001, that Kit “demonstrates a
pattern of behavior consistent with a diagnosis of mild
autism.” This Vaccine Act petition was filed on July 22,
2002.
                             II
    The court rules that the three-year period of limita-
tions started to run by May 25, 1999, before possible
autism was mentioned by any medical professional—and
therefore that the petition became time-barred after May
25, 2002.
    The first diagnosis of Kit Carson’s autism was in April
2001. Thus the court interprets the statute that provides
a three year limitation period for filing a claim for vaccine
injury, to include the period during which Kit’s autism
was not recognized or was rejected by a battery of medical
professionals.
    My colleagues cite irrelevant precedent that the start
of the limitations period is unaffected by diagnostic delay
by “lay persons” who do not appreciate a symptom’s
medical significance. Here Kit received extensive and
continuing evaluations by specialists, yet the likelihood of
STACY CARSON   v. HHS                                      5
autism was not diagnosed by any medical or pediatric
professional. Kit’s early speech delay was not recognized
as a manifestation of autism until after the occurrence of
additional symptoms.
    The court holds that the relation of the date of a first
undiagnosed symptom to the date at which that symptom
could be recognized as a sign of autism is irrelevant to the
commencement of the limitations period, citing Markovich
v. Sec’y of Health & Human Servs., 477 F.3d 1353 (Fed.
Cir. 2007). In Markovich this court stated: “A symptom
may be indicative of a variety of conditions or ailments,
and it may be difficult for lay persons to appreciate the
medical significance of a symptom with regard to a par-
ticular injury.” Id. at 1357. The court stated that “a
petitioner typically will recognize that a particular symp-
tom constitutes the first symptom or manifestation of the
onset of a certain injury only with the benefit of hindsight,
after a doctor makes a definitive diagnosis of the injury.”
Id. at 1358.
     The court held in Markovich that the failure of lay
persons (such as parents) to recognize a symptom of
vaccine injury does not avoid commencement of the limi-
tations period when the symptom is recognizable by
professionals as vaccine injury. The court held that “‘the
first symptom or manifestation of onset,’ for the purposes
of § 300aa–16(a)(2), is the first event objectively recog-
nizable as a sign of a vaccine injury by the medical profes-
sion at large.” Id. at 1360.
    In Markovich the infant’s eye-blinking seizures that
occurred on the day the vaccines were administered were
“objectively recognizable by the medical profession at
large” as constituting evidence of vaccine injury. Marko-
vich did not hold, as does the panel majority herein, that
when medical professionals did not recognize vaccine-
related symptoms and rejected the diagnosis of the afflic-
tion, the parents are nonetheless charged with knowledge
6                                      STACY CARSON   v. HHS
of existence of the affliction for statute of limitations
purposes.
    In Cloer v. Sec’y of Health and Human Services, 654
F.3d 1322 (Fed. Cir. 2011) (en banc) this court held that
“the statute’s limitations period begins to run on the
calendar date of the occurrence of the first medically
recognized symptom or manifestation of onset of the
injury claimed by the petitioner.” Id. at 1324-25. The
court stated that the first symptom or manifestation for
limitations purposes must be of a “vaccine-related injury
recognized as such by the medical profession at large.” Id.
Such medical recognition did not exist with Kit Carson’s
early manifestation of speech delay.
    The difficulty in recognizing autism’s “first symptom”
was acknowledged by the Court of Federal Claims in
Setnes v. United States, 57 Fed. Cl. 175 (Fed. Cl. 2003):
“As distinguished from other medical conditions . . . the
beginning stage of autism cannot be reduced to a single,
identifiable symptom. Many of the initial ‘symptoms’ are
subtle and can easily be confused with typical child be-
havior.” Id. at 179. All of the medical witnesses agreed
that delayed speech alone is not generally viewed or
recognized by the medical profession as indicative of
autism. Expert witness Dr. Mumper testified that autism
diagnosis requires more than speech delay:
    Q. Okay. Does [expressive speech delay] match
    the particular diagnosis for autism?
    A. Well, that one criteria’s consistent with the
    diagnosis of autism. But in order to have autism,
    you can’t just have that one symptom. You have
    to have impairment in social reciprocity as well as
    repetitive and stereotype behaviors . . . .
    Q. Would a particular physician or psychiatrist
    or pediatrician know from an expressive speech
STACY CARSON   v. HHS                                    7
   delay symptom that this particular child had au-
   tism?
   A. No, I don’t think so. And I think this is a cru-
   cial issue because speech delay has about a dozen
   things that can be caused. And I mentioned that
   it’s a very common complaint that we deal with.
Dr. Mumper Test. at 16-17 (June 2, 2009).
    It is undisputed that speech delay alone is not objec-
tively recognizable by the medical community as a first
symptom of autism. The Diagnostic and Statistical Man-
ual of Mental Disorders, 4th Edition (2000) requires,
before a diagnosis of autism can be made, clinical criteria
across three domains of social development, i.e. (1) quali-
tative impairment in social interaction, (2) qualitative
impairment in communication, and (3) restricted repeti-
tive and stereotyped patterns of behavior, interests, and
activities.
    Petitioners argue that since delayed speech is com-
mon, it can only be a “first symptom” of autism when
accompanied by some other behavior that would lead
medical professionals to consider autism as a possible
diagnosis. Petitioners argue that this accompanying
abnormal behavior occurred in September 1999 when
Kit’s Individualized Education Program evaluation
showed signs of social impairment, including a lack of
interest in toys.
    Hindsight is not properly invoked to retrospectively
make “objectively recognizable” what the medical com-
munity did not recognize and could not recognize, other
than retrospectively. Such hindsight analysis does not
retrospectively start the period of limitations. Only after
Kit’s autism was diagnosed–after several years of pro-
gression–could the medical profession retrospectively
classify his early speech delay as a symptom of autism.
However, at the time that the court starts the limitations
8                                      STACY CARSON   v. HHS
period for Kit Carson, the medical evidence was undisput-
ed that Kit’s autism was not objectively recognizable by
medical professionals.
    The panel majority relies on Wilkerson v. Sec’y of
Health & Human Servs., 593 F.3d 1343 (Fed. Cir. 2010)
for the proposition that retrospective diagnosis can retro-
spectively start the limitations period. However, in that
case the medical experts agreed that the Attention Deficit
Hyperactivity Disorder symptoms were objectively recog-
nizable. In contrast, here the medical experts agreed that
delayed speech is often normal and is not objectively
recognizable as a sign of possible vaccine injury unless
accompanied by other abnormal behavior. There was no
testimony, by any of the medical experts, that Kit’s speech
delay alone was objectively recognizable as indicative of
autism.
    The question is whether medical specialists could
have recognized that Kit was manifesting autism at the
time when the panel majority starts the period of limita-
tions. Dr. Mumper agreed that speech delay “can be a
symptom of autism” but she did not “concede,” as the
panel majority states, that Kit’s autism could have been
objectively recognized upon his manifestation of speech
delay. As discussed ante, Dr. Mumper, like all the expert
witnesses, testified that speech delay can be normal
development, and that autism requires additional im-
pairment.
    The panel majority bases its determination of autism
on the “first symptom” that the medical community
rejected, and, having made this retrospective judicial
diagnosis, concludes that it was known from the start that
Kit was afflicted with autism. The Special Master did not
so hold. Rather, with hindsight knowledge that Kit was
eventually found to be afflicted with autism, the Special
Master recognized that Kit’s speech delay could have been
a symptom of this autism. However, but for the eventual
STACY CARSON   v. HHS                                    9
diagnosis based on additional manifestations, neither the
medical experts nor this court could determine a “first
symptom” of autism for purposes of the Vaccine Act’s
statute of limitations. Unless accompanied by other
behaviors, speech delay is not objectively recognizable as
a vaccine injury. 2
    The panel majority incorrectly states that “the medi-
cal community would recognize speech delay as a symp-
tom of autism.” Maj. Op. at 7 n.3. However, Kit was
studied by a barrage of medical specialists, none of whom
found that Kit’s delayed speech was indicative of autism,
and who did not modify that diagnosis until other mani-
festations of autism appeared. 3 The court’s holding that
delayed speech, without more, starts the statute of limita-
tions, would be tenable only if delayed speech, without
more, were a compensable vaccine injury. This is not the
government’s position.


   2    For instance the “Einstein Syndrome” refers to
speech delay in children having high intelligence and
precocious analytical skills. See Thomas Sowell, The
Einstein Syndrome: Bright Children Who Talk Late (Basic
Books, 2001).
   3    In an addendum to her Medical Expert Opinion,
filed February 17, 2009, Dr. Mumper responded to the
question “What is the first symptom, in retrospect, that
would have suggested the diagnosis of autism?” and
answered, “With the advantage of retrospective analysis
of the records, some observations from IEP assessments
conducted by Buncombe County School district in Sep-
tember and October 1999 may have indicated the first
symptoms of autism.” Dr. Mumper also stated that “Even
with a retrospective review of the medical records, it is
documented that the doctor suspected nothing but speech
delay as of May 2000.”
10                                      STACY CARSON   v. HHS
     At a minimum, equitable tolling should be applied to
this petition. Equitable tolling permits the petitioner to
present the claim; it does not decide the merits of the
claim. 4 The Court in Sebelius v. Cloer, 133 S. Ct. 1886,
1892 (2013) recognized that the limitations period of the
Vaccine Act is subject to equitable tolling. From the
ruling that Kit Carson’s claim started to accrue from a
date at which no vaccine-based injury was objectively
recognizable and no Vaccine Act claim could have been
filed, and the court’s refusal to toll the limitations period
on its view of that period, I respectfully dissent.




     4  We recognize that controversy exists as to the re-
lation between vaccines and autism. See Cedillo v. Sec’y
of Health & Human Servs., 617 F.3d 1328 (Fed. Cir.
2010).
