In a statewide class decision released on December 17, 2020, the Veterans Claims Court (CAVC) ordered the U.S. Department of Veterans Affairs (VA) to re-examine the disability claims assessment of veterans exposed to ionizing radiation in a 1966 nuclear cleanup operation in Palomares, Spain. The court’s decision is a long-awaited move to recognize Palomares’ veteran service and ensure they have access to the benefits they deserve. The class is represented by Yale Law School’s Veterans Legal Services Clinic and the New York Legal Assistance Group.
In Skaar v. Wilkie told CAVC that the VA had failed to fulfill its legal responsibility to determine whether the method used to assess radiation exposure of Palomares veterans was scientifically sound. The VA relied on this unsound science to deny radiation sickness disability benefits to veterans who responded to the nuclear disaster, the clinic said. The most recent decision comes a year after the historic court decision in the same case to certify first class veteran applicants in a direct appeal against the VA benefit system.
“This historic court decision will pave the way for Palomares veterans to finally receive compensation and respect for the sacrifices they made in the purge,” said Lara Markey ’22, a law student at Veterans Legal Services Clinic. “It is time for the VA to finally recognize the service and wounds of those who responded in Palomares.”
In 1966, an Air Force bomber crashed after a mid-air collision. Four hydrogen bombs were released in the collision, which dispersed radioactive plutonium dust across the Spanish countryside. Victor Skaar and about 1,500 other soldiers were sent to clean up the radioactive debris that lived among the debris for weeks. Now, more than 50 years later, many of these veterans have radiation-related illnesses that require medical treatment. Others have died from these conditions, but their survivors continue to struggle for recognition and benefit.
The Palomares veterans are led by named plaintiff Victor Skaar of Nixa, Missouri, a retired Air Force sergeant major who participated in the purge. Skaar and the class argued that the VA made a mistake in using a method of determining radiation exposure that ignored 98 percent of radiation readings taken by veterans after the incident. Nuclear scientists like Dr. Frank von Hippel from Princeton University and the VA’s own advisor have objected to the method, according to the clinic. The CAVC found that by failing to explain why it had adopted a methodology originally used by the Air Force, the CA was violating federal law requiring radiation exposure calculations to be based on “solid scientific evidence”.
In a statement by Judge Michael Allen, the Court “rejected the Chamber [of Veterans’ Appeals] Finding that the dose estimate is solid evidence “at first sight” with no further details essentially means that the board is saying that the dose estimate is solid “because I say it”. “
The Court admonished the Veterans Board of Appeal (BVA) that it may not “be able to evade its responsibility to assess whether the evidence is valid before it is presented”[.]The VA must now review the evidence from the parties and provide a deliberate analysis of the methodology to ensure that only solid scientific evidence is used to determine veterans’ eligibility for disability benefits.
“After decades of struggle, we are grateful that the court finally listened to our requests,” said Skaar. “We have been ignored and rejected for decades, but this case is about more than just the benefits the VA owes us. It is about the VA honoring our service and sacrifice that it has been trying to sweep under the rug for more than 50 years. We expect the VA to act quickly now to correct this injustice. “
Senator Richard Blumenthal ’73, a member of the Senate Committees on Veterans Affairs and the Armed Forces and the main sponsor of the 2019 proposed Palomares Veterans Act (p.1896), said: “The Palomares nuclear disaster – one of the greatest in history – caused men and women in uniform sent to clean up without proper protection and guidance, immeasurable suffering and pain. This decision marks a major victory in the struggle to provide these veterans and their families with the health care and benefits they need and deserve. The VA’s unwillingness to review poor Department of Defense data has created indescribable delays for these veterans who have sent and bravely served their country. Thank you to Yale Law School’s Veterans Legal Services Clinic for their tireless work on this cause. I will continue to advocate the passage of the Palomares Veterans Act to provide these veterans with the recognition and support they deserve. “
“Finally, the court is asking the VA to fulfill its legal obligation to assist these veterans and to ensure that their claims are assessed using methods that are both scientifically and legally sound,” said Rick Weidman, co-founder of Vietnam Veterans of America ( VVA). “With the decision of the court and the relentless advocacy of Mr. Skaar and other class members, the VA must now justify its practice of arbitrarily rejecting the extraordinarily high levels of radiation these veterans have been exposed to and continue to suffer from.”
Veterans Legal Services Clinic was founded in 2010 and is part of the Jerome N. Frank Legal Services Organization at Yale Law School. Students and faculties represent Connecticut veterans in litigation in government and court cases regarding benefits, discharge improvements, and other civil rights issues. In addition, students represent local and national organizations in state and federal policy representation regarding the legal needs of veterans.
Frequently asked Questions:
Who are Victor Skaar and the rest of the class?
Victor Skaar, a retired Air Force sergeant major who was present at the Palomares cleanup, is the lead plaintiff representing the Palomares veteran class in this lawsuit. The class includes all veterans who were present at the Palomares cleanup in 1966, who have already applied for VA benefits due to radiation exposure and who have been denied these benefits (but who still have time to appeal) or who can apply for such benefits in the Future.
How does the VA decide whether radiation-exposed veterans should be compensated?
To determine whether a veteran is eligible for service-related disability compensation, the VA must determine that the veteran has suffered an injury and that that injury was caused by or related to his or her service. Exposure to radiation while on duty is deemed to be such injury if the veteran’s condition is more likely to be caused by the exposure. In assessing claims for radiation-related illness, the VA determines the dose of radiation to which the veteran was exposed and uses a formula to translate that dose into the probability that the radiation caused the veteran’s illness. If this probability is 50 percent or more, the VA grants benefits to the veteran.
What will happen next?
The Board of Veterans’ Appeals must now reconsider the claims made by Skaar and other class members whose cases lie before it, and either better justify continued reliance on the flawed methodology or use a different one.
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