Court Rules in Favor of Veterans Exposed to Radiation

In a nationwide class decision released on December 17, 2020, the Court of Appeals for Veterans Claims (CAVC) ordered the U.S. Department of Veterans Affairs (VA) to reexamine how it evaluates disability claims of veterans exposed to ionizing radiation in a 1966 nuclear cleanup operation at Palomares, Spain. The Court’s decision is a long-awaited step towards recognizing Palomares veterans’ service and ensuring they have access to the benefits they earned. The class is represented by the Veterans Legal Services Clinic at Yale Law School and the New York Legal Assistance Group.

In Skaar v. Wilkie, the CAVC found that the VA had not fulfilled its legal responsibility to determine whether the method it uses to assess Palomares veterans’ radiation exposure is scientifically sound. The VA has relied on this unsound science to deny disability benefits for radiation illnesses to veterans who responded to the nuclear disaster, according to the Clinic. The latest decision comes one year after the Court’s historic decision in the same case to certify the first-ever class of veteran claimants in a direct appeal from the VA benefits system.

“This historic decision by the Court will pave the way for Palomares veterans to finally receive compensation and respect for the sacrifices they made at the cleanup,” said Lara Markey ’22, a law student intern with the Veterans Legal Services Clinic. “It is time for the VA to finally recognize the service and wounds of those who responded at Palomares.”

In 1966, an Air Force bomber crashed following a midair collision. The collision released four hydrogen bombs, spreading radioactive plutonium dust across the Spanish countryside. Victor Skaar and approximately 1500 other servicemembers were sent to clean up the radioactive debris, living among the wreckage 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 fight for recognition and benefits.

The Palomares veterans are led by named plaintiff Victor Skaar of Nixa, Missouri, a retired Air Force Chief Master Sergeant who participated in the cleanup. Skaar and the class argued that the VA had erred in using a methodology to determine radiation exposure that ignored 98 percent of the radiation measurements taken from veterans after the incident. Nuclear scientists like Dr. Frank von Hippel from Princeton University and the VA’s own consultant have faulted the method, according to the Clinic. The CAVC found that because the VA had not explained why it adopted a methodology originally used by the Air Force, it violated a federal law that requires calculations of radiation exposure to be based on “sound scientific evidence.”

In an opinion by Judge Michael Allen, the Court rejected “the Board [of Veterans’ Appeals] finding that the dose estimate is sound evidence ‘on its face’ without more detail essentially amounts to the Board saying the dose estimate is sound ‘because I say so.’”

The Court admonished the Board of Veterans’ Appeals (BVA) that it may not “abdicate its responsibility to assess whether the evidence before it is ‘sound[.]’” The VA must now review the parties’ evidence and provide considered analysis of the methodology to ensure that only sound scientific evidence be used to determine veterans’ eligibility for disability benefits.

“After a decades-long struggle, we are grateful that the Court has finally listened to our pleas,” said Skaar. “We have been ignored and denied for decades, but this case is about more than just getting the benefits the VA owes us. It is about the VA honoring our service and our sacrifice, which they have tried to sweep under the rug for more than 50 years. We expect that the VA will now act quickly to rectify this injustice.”

Sen. Richard Blumenthal ’73, a member of the U.S Senate committees on Veterans’ Affairs and Armed Services, and the lead sponsor of the Palomares Veterans Act (S.1896) proposed in 2019, said, “The Palomares nuclear disaster — one of the largest in history — caused untold suffering and pain to the men and women in uniform sent to the cleanup without proper protection and guidance. This ruling represents a major victory in the fight to provide these veterans and their families the health care and benefits they need and deserve. The VA’s unwillingness to review shoddy data from the Department of Defense has led to unconscionable delays for these veterans, who ably and bravely served their country. Thank you to the Yale Law School Veterans Legal Services Clinic for their tireless work on behalf of this cause. I will continue to advocate for passage of the Palomares Veterans Act to provide these veterans the recognition and assistance they have earned.”

“Finally, the Court is requiring the VA to fulfill its duty under the law to assist these veterans and ensure their claims are evaluated using methods that are both scientifically and legally sound,” said Rick Weidman, Co-Founder of Vietnam Veterans of America (VVA). “Thanks to the Court’s decision and the tireless advocacy of Mr. Skaar and other class members, the VA must now justify its practice of arbitrarily dismissing the exceedingly high levels of radiation these veterans encountered and continue to suffer from.”

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 Connecticut 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.