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, https://www.counterpunch.org/2020/12/18/air-force-veterans-of-plutonium-dust-disaster-win-class-action-standing)

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 (a version of this report was published by CounterPunch online, Jan. 1, 2021)

Air force veterans exposed to plutonium after a first-ever US nuclear weapons disaster in Spain have won extremely rare recognition as a class in a lawsuit against the Department of Veterans Affairs.

On Jan. 17, 1966, an air force B-52 bomber exploded over the village of Palomares, Spain during a routine airborne refueling. Seven airmen were killed and the bomber’s four hydrogen bombs were thrown to the earth. Conventional explosives (not the nuclear warheads) in two of the bombs detonated in massive explosions, one right in the village, gouging massive, plutonium-covered craters and spewing as much as 22 pounds of pulverized plutonium dust over houses, streets and farm fields.

On June 19, 2016, the New York Times published a 4,500-word investigative report about the lawsuit filed in the Court of Appeals for Veterans Claims by chief master sergeant Victor Skaar (USAF, Rt.). Skaar, who was 30 at the time, was part of a clean-up team, dubbed Operation Moist Mop, assigned to the disaster response. A throng of some 1,700 soldiers were put to surveying 400 acres and washing the inside and outside of village buildings. Over a period of 80 days they filled 4,810 barrels with plutonium-contaminated soil and loaded the drums aboard a ship bound for disposal stateside.

Two years after Skaar retired in 1981, he came down with a blood disorder called leukopenia. He’s been trying ever since to have the illness recognized as service-related. In a phone interview, Skaar told Nukewatch that dozens of the veterans contaminated during the clean-up are also sick. If their claims can be established in court, they would be eligible for free health care and a disability pension. Sometimes “clean-up” amounted to hosing the plutonium dust. It was hosed off houses, streets and even a school, leaving the toxic runoff to contaminate downstream surface waters. When the barrels of collected soil had excessive radiation readings, troops blew the dust off using air compressors. When testing the troops’ clothing, radiation meters regularly went off-scale.

After the 2016 exposé in the Times, Michael Wishnie, a Professor of Law at Yale Law School who runs the Veterans Legal Services Clinic, called Skaar and offered the aide of the clinic in the case. It’s been a David and Goliath battle from the beginning. Skaar told the Times, “First they told me there were no records, which I knew was a lie because I helped make them.” The air force seems determined to keep denying responsibility until the surviving vets die off and the lawsuit becomes moot. Meghan Brooks, a former Yale clinic member, told the Times, “The bunk science the air force was using was not just harming Mr. Skaar, but all the other Palomares veterans. Mr. Skaar really wanted to fight on behalf of others,” she said.

After Sgt. Skaar’s three decades of relentlessly filing Freedom of Information Act requests and repeatedly appealing FOIA denials, he and the Yale team finally broke through. In a Dec. 6, 2019 decision the appeals court granted class action status for some but not all the Palomares veterans. The court also found that Skaar could serve as “class representative” for as-yet-unnamed class members.

Class action status for Skaar and the other appellants “represents a major step forward for veterans with long-term health issues linked to toxic exposure in the service,” the Times reported on Feb. 11, 2020. Then on Sept. 2, 2020, the court heard oral arguments in the case and accepted new evidence including a declaration by Dr. Murry Watnick, a former Strategic Air Command Medical Officer. (Full disclosure: Dr. Watnick is a longtime Nukewatch supporter and alerted us to the class action.) Part of Watnick’s affidavit notes that, “The amount of plutonium-239 released was estimated to be approximately 10 kilograms [22 lbs]. One microgram of plutonium-239 is extremely toxic. The estimated release was three billion micrograms.”

Plutonium’s chief danger is from inhalation, because its deadly alpha particles lodge in the lungs “bombarding the adjacent cells with highly toxic ionizing radiation,” Watnick wrote. Troops involved were exposed to “plutonium dust six to eight hours daily in an environment highly conducive to inhalation of alpha particles.”

The class action is focused on the VA’s denial of Mr. Skaar’s claim of service-related illness, and the military’s “arbitrary and capricious” use of inadequate radiation data which is based on shoddy methods of recording and maintaining urine samples taken from clean-up crew members. The veterans also challenge the VA’s omission of Palomares cleanup operations from its list of radiation risk activities. The appeal is currently ongoing.

–John LaForge (LA Progressive online published this report Dec. 13, & CounterPunch Dec. 18)