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.
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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.”
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How does the VA decide whether to give compensation to veterans exposed to radiation?
In order to determine whether a veteran is entitled to compensation from service-connected disabilities, the VA must determine that the veteran has suffered an injury and that such injury was caused by or connected to their service. Exposure to radiation during service qualifies as such an injury if the veteran’s condition is more likely than not caused by the exposure. In adjudicating claims for radiation-related illnesses, the VA determines the radiation dose that the veteran was exposed to, and then uses a formula to translate that dose into the likelihood that the radiation caused the veteran’s illness. If this likelihood 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 of Skaar and other class members whose cases are before it, and either better justify its continued reliance on the flawed methodology or use a different one.
Read more at Court Rules in Favor of Veterans Exposed to Radiation
