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Monday, February 4, 2019

Major Step Forward in Class Action for Veterans Exposed to Radiation

In a 6-3 ruling on February 1, 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) ordered the Board of Veterans’ Appeals to address appellant Victor Skaar’s argument that the VA used scientifically unsound methodology to deny his disability benefits claims based on exposure to ionizing radiation. CMSgt. Skaar (ret.) is the lead appellant in a proposed class action of approximately 1,600 veterans deployed in a 1966 clean-up operation after an airplane collision dropped four hydrogen bombs over Palomares, Spain.  Skaar is represented by the Veterans Legal Services Clinic at Yale Law School.

The significance of this opinion was evident in the four different opinions issued by the nine-judge court. “[W]e are overruling more than 2 decades of Court caselaw and changing long-established procedural norms,” wrote Judge Mary Schoelen in a concurring opinion. Yet the interim order was appropriate, Judge Schoelen explained, in part due to “the harm that could potentially befall a sizeable class of veterans” were the Court to proceed under its prior practices.

“For more than 50 years, the VA has denied that cleaning up the nuclear bomb disaster at Palomares impacted our health,” said Skaar. “I have fought a long battle to get to this point, and am gratified that this order recognizes that the VA was wrong to completely ignore my challenge to its broken system that continually ignored our existence and exposure.”

Sen. Richard Blumenthal ’73, a member of the Senate Veterans’ Affairs and Armed Services Committees who previously introduced legislation on behalf of Palomares veterans, said, “I applaud this court decision, which raises legitimate and serious questions about the VA’s lack of scientific analysis of the radiation exposure suffered by the heroic Palomares veterans. These veterans deserve this court victory and real relief. I will continue fighting to ensure Palomares veterans and their families get the proper recognition and benefits they earned through their selfless sacrifice.”

The CAVC’s order assigns error to the BVA for failing to address Skaar’s argument, and gives it only 30 days after he submits additional evidence to determine whether the VA’s dose estimate methodology uses “sound scientific evidence.” The case will then return to the CAVC for further briefing and a decision, including whether the Palomares veterans’ challenges against the VA will be resolved on a class basis.

Rick Weidman, Co-Founder of Vietnam Veterans of America, said, “VVA has long fought for the VA to recognize and appropriately compensate toxic wounds. VVA is proud to stand with veterans of the 1966 Palomares nuclear disaster, and we are excited to see this crucial first step towards recognizing their radiation-connected illnesses and reforming the VA system.”

John Super '20, a law student intern with the Clinic, said, “This order for an expedited limited remand recognizes that these elderly and disabled veterans need care now; we are eager to return to the CAVC and hope to resolve this case in all Palomares veterans’ favor soon.”

The Veterans Legal Services Clinic was founded in 2010 to train law students and to serve the legal needs of veterans. Under the supervision of clinical professors, Clinic students engage in litigation before administrative agencies and courts on a range of matters. The Clinic makes special efforts to assist vulnerable veteran populations and those least connected to existing service networks, such as women, recently returned, non-citizen, LGBT, and elderly veterans.