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Thursday, July 1, 2021
Clinic Files Motion for Veteran Exposed to Radiation
The Veterans Legal Services Clinic at Yale Law School filed a motion with the Board of Veterans’ Appeals on behalf of a veteran who is seeking to represent a class of servicemembers who were exposed to radiation while cleaning up after a 1966 nuclear accident in Palomares, Spain. U.S. Air Force veteran Edward Feeley’s class action request is likely the first of its kind at the Board, the highest adjudicative body within the U.S. Department of Veterans Affairs (VA). The motion is the latest in the Palomares veterans’ five-decade struggle for recognition and benefits from the agency.
The clinic also represents the Palomares veterans in the ongoing landmark case Skaar v. Wilkie, in which the Court of Appeals for Veterans Claims certified the first class of veteran claimants in a direct appeal from the VA benefits system. That 2019 decision paved the way for these veterans to finally receive compensation and recognition from the federal government. Ruling in the case last year, the court found that the VA had not fulfilled its legal responsibility to determine whether the method it uses to assess the veterans’ radiation exposure is scientifically sound.
In 1966, a B-52 bomber carrying four nuclear warheads crashed with a fueling tanker in midair and scattered radioactive plutonium dust and debris across the Spanish countryside. The U.S. Air Force ordered Feeley and approximately 1,400 other U.S. servicemembers to clean up the radioactive plutonium debris. Feeley and the others spent weeks living amidst the radioactive debris, cleaning it up without adequate protective equipment. Now, more than 50 years later, Feeley and many other Palomares veterans suffer from radiogenic illnesses such as cancers and blood disorders. Many of these veterans have already died from their conditions.
Feeley, a member of the certified class in Skaar, is seeking to represent the Palomares veterans in this new case. Many federal agencies aggregate individual claims into class actions in appropriate cases. His motion was filed on June 29, 2021. Specifically, Feeley is challenging the VA’s refusal to add Palomares to its list of recognized radiation risk activities. By excluding the Palomares cleanup from that list, veterans who participated in it do not presumptively receive service-connected disability benefits, even if they suffer from conditions that the VA otherwise recognizes as radiogenic. According to the clinic, the VA excluded Palomares from the list despite clear scientific evidence that veterans there were exposed to dangerous levels of radiation. Furthermore, the clinic maintains, the Secretary of Veterans Affairs has previously recognized other instances of exposure in which veterans were exposed to significantly less radiation.
“The Palomares veterans have been ignored and denied by the VA for decades,” Feeley said. “I hope that the VA will allow me to represent my fellow Palomares veterans who are still fighting and dying without the recognition and support they deserve.”
“It is time for the VA to recognize these veterans’ service and the wounds they incurred cleaning up after the Air Force at Palomares,” said Matthew Handley, a law student intern with the Veterans Legal Services Clinic. “The Department of Energy already grants presumptive disability benefits to the employees who handled sealed drums of Palomares soil months later, after they had been shipped to the U.S. for disposal. The fact the VA does not grant the same recognition to the veterans who filled those very barrels is unconscionable.”
“We are proud to stand with Mr. Feeley and the other veterans of the 1966 Palomares nuclear disaster,” said John Rowan, Air Force Veteran and National President of Vietnam Veterans of America. “VVA has long fought for the VA to properly recognize and compensate veterans who were subjected to toxic exposures. As Congress is moving to right this wrong, we continue in our support of these veterans’ efforts to get justice through the Courts. The VA should follow the lead of numerous other federal agencies and allow Mr. Feeley to aggregate this claim so the Palomares veterans can fight together again to gain the recognition they deserve.”
“The Palomares nuclear disaster caused untold suffering and pain that still affects the health and welfare of the men and women in uniform sent to the cleanup without proper protection and guidance,” said Senator Richard Blumenthal ’73, a member of the Senate Veterans Affairs and Armed Services Committees and the lead sponsor of the proposed Palomares Veterans Act of 2021. “It is unconscionable that more than five decades later, they are still fighting to receive their benefits from the VA. I will continue advocating to rectify this injustice through legislation, including the COST of War Act and the Palomares Veterans Act. The Palomares veterans are running out of time, and swift action is imperative.”
Established in 2010, the Veterans Legal Services Clinic is part of the Jerome N. Frank Legal Services Organization at Yale Law School. Students and faculty represent veterans in litigation before administrative agencies and courts, on benefits, discharge upgrade, and other civil rights matters. In addition, students represent local and national organizations in state and federal policy advocacy relating to the legal needs of veterans.