Court Orders Veterans Affairs Department to Replace Flawed Science in Plutonium Disaster Case

In a major class action ruling issued December 17, the US Court of Appeals for Veterans Claims in Washington, DC has ordered the Department of Veterans Affairs (VA) to re-examine how it evaluates disability claims from veterans exposed to deadly alpha radiation during cleanup operations following a disastrous nuclear weapons accident at Palomares, Spain.

The Veterans Legal Services Clinic of Yale Law School, which since 2016 has assisted in litigating the case, Skaar v. Wilkie, along with the New York Legal Assistance Group, announced the decision. The ruling follows oral arguments made September 2, 2020, and comes one year after the Court’s historic decision to certify “class action” status for the veterans of the disaster.

On Jan. 17, 1966, during an airborne refueling gone wrong, an Air Force B-52 bomber exploded over the village of Palomares. Seven crewmembers were killed and four hydrogen bombs were thrown to the Earth. Upon impact, conventional explosives inside two of the H-bombs detonated, blasting two giant craters and spreading as much as 22 pounds highly radioactive, carcinogenic pulverized plutonium across the Spanish village and countryside. (See Dec. 18 report)

In its new decision, the Court said the VA violated federal law requiring that its assessment of veterans’ radiation exposures be based on sound science. The VA has so far relied on faulty methods to deny disability benefits to veterans for radiation-related illnesses caused by the nuclear weapon disaster, the legal services clinic said, calling the decision “a long-awaited step toward recognizing the Palomares veterans’ service and ensuring they have access to the benefits they earned,” it said. Even a single particle of plutonium if inhaled or ingested can cause cancer.

The injured veterans are led by Chief Master Sergeant Victor Skaar (USAF, Ret.) of Nixa, Missouri, who participated in the clean-up. Skaar and the class argue that the VA’s radiation exposure methodology “ignored 98 percent of the radiation measurements taken from veterans after the incident,” an error so grave that, “Dr. von Hippel and even the VA’s own consultant have faulted the method,” the law clinic said.

Skaar and at least 1,500 others were sent to clean up plutonium-contaminated debris and lived amidst the wreckage and the plutonium dust for weeks — handling it, cleaning it from clothes, washing it off of village surfaces, placing contaminated soil in barrels, and even incinerating truckloads of poisoned debris. Now, “many of the veterans of have radiation-related illnesses that require medical treatment. Others have died from these conditions…” the law clinic said.

Referring to a December 2017 report by Princeton University physicist Frank von Hippel about 26 GIs who were identified in 1966 as having received the highest exposures, the Court wrote: “Dr. von Hippel concluded that ‘The Air Force’s dose estimates have huge uncertainties and the maximum doses incurred by those not in the “High 26” could be hundreds of times higher than those that the Air Force has recommended to the VA for determination of benefits.’”

The Court said that the VA never explained why it adopted the flawed methodology.” The Court’s opinion written by Judge Michael Allen admonished the Board of Veterans’ Appeals, declaring that it may not “abdicate its responsibility to assess whether the evidence before it is ‘sound.’” The Court ordered the VA to review the parties’ evidence and provide considered analysis of the methodology to ensure that only sound scientific evidence is used to determine veterans’ eligibility for disability benefits.

In a statement to the law clinic, John Rowan, Air Force Veteran and National President of Vietnam Veterans of America said, “Thanks to the Court’s decision and the continuing 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 … [and] fulfill its duty under law to assist these veterans and ensure their claims are evaluated using methods that are both scientifically and legally sound.”

Startlingly, the Air Force has never included the weeks-long Palomares plutonium cleanup on its list of “radiation risk activities” which it uses to rule on disability claims, in spite of the its own 1967 determination that service members’ “health is in no jeopardy from retention of radioactive materials as a result of participation in the [Palomares] operation.” Asked how the Air Force can keep such a radiation-heavy clean-up operation off the list, the law clinic’s Molly Petchnik told me list was drawn up long ago and the military is reluctant to expand it.

The official list in the Code of Federal Regulations (38 CFR § 3.309) does recognize four radiation activities since 1966, including service at H-bomb production sites in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tenn. in 1991; and underground H-bomb test service on Amchitka Island, Alaska in 1974.

John LaForge is a Co-director of Nukewatch, a peace and environmental justice group in Wisconsin, and edits its newsletter.