Nukewatch Quarterly Winter 2021-2022
Editor’s note: Four US senators have urged Secretary of Veterans Affairs Denis McDonough to withdraw the VA’s appeal of a federal court order granting class action status to veterans contaminated with plutonium in Palomares, Spain, after a 1966 nuclear weapons crash. The senators’ October 12, 2021 letter, lightly edited, follows.
Dear Mr. Secretary,
We write to respectfully request you withdraw your appeal in Skaar v. McDonough now before the US Court of Appeals for the Federal Circuit, concerning the claims of approximately 1,400 veterans exposed to dangerous radiation during the 1966 nuclear clean-up operation in Palomares, Spain. Instead of pursuing your appeal, which will only serve to further delay relief for these veterans, we urge you to use your rulemaking authority to finally provide long-overdue care and assistance to Palomares veterans by including Palomares in the list of [service related] “radiation-risk activities” under 38 CFR 3.309. Events with lower levels of radiation exposure are already on that list, and civilian workers who buried sealed barrels filled with Palomares soil — a similar, but even less risky task than that performed by the Palomares veterans — receive presumptive benefits…
By way of background, in 1966, approximately 1,400 US service members were exposed to dangerous levels of ionizing radiation when they were deployed to clean up the crash site of a B-52 bomber which was carrying nuclear warheads. These service members worked, slept, and ate at the crash site, shoveling radioactive plutonium dust into barrels for weeks without proper protective equipment. In the decades since, many of those veterans have developed radiation-related illnesses that require medical treatment and numerous veterans have already died from these conditions, leaving the survivors to continue to fight for recognition and benefits. The US Court of Appeals for Veterans Claims (CAVC) recently ordered the VA to reexamine the methodology by which it adjudicates disability benefits claims for veterans of the 1966 Palomares nuclear disaster. This decision came one year after the CAVC had permitted veteran Victor Skaar to proceed with this challenge on behalf of a class of Palomares veterans. [emphasis added]
At its heart, Mr. Skaar’s legal challenge is about the failure to recognize the radiation exposure of the Palomares veterans. The VA does not include Palomares in its list of radiation exposure events … and it has relied on an unsound method to calculate individual exposures instead…. The merits of this argument have not yet been resolved. Rather, the CAVC ordered only that the Board of Veterans’ Appeals is required to review Mr. Skaar’s evidence and adequately adjudicate his legal challenge. Yet, the VA has chosen to appeal even this interim ruling.
… The Court’s orders in Skaar, from which you now appeal, are long-awaited, critical steps towards securing benefits and health care for these veterans. Tragically, many of them have died during their decades-long fight for recognition, and the very youngest among them are now in their seventies. We urge you not to further prolong justice for these now aging and ill veterans by pursing an unnecessary appeal of the Court’s class certification and remand orders, before the merits of the Palomares veterans’ claims have fully been heard. This case truly embodies the legal maxim that justice delayed is justice denied. The VA’s decision to appeal the Court’s class certification and remand orders before the merits have been fully reached, will add potentially years of delay to resolution of this case, when the affected service members simply do not have that time to spare. To put it bluntly, more Palomares veterans will die during the pendency of this litigation if the VA continues with this appeal. You have the authority to act to their benefit, and we strongly urge you to do so expeditiously by withdrawing your appeal.
Sincerely, Sherrod Brown, D-Ohio, Dianne Feinstein, D-California, Christopher Coons, D-Delaware,
Richard Blumenthal, D-Connecticut.
Note from the Lead Plaintiff
On November 8, Victor Skaar emailed Nukewatch with this update: “I obtained the ‘official’ urinalyses of myself and of each of the other ‘high 26’ [who were] selected by USAF medical scientists to submit follow-up specimens to the Radiological Health Lab, six, twelve, and eighteen months after departure [from Spain]. Those were the only data evaluated by the USAF Surgeon General’s contracted bio-environmental engineering team — Labat-Anderson…. [This team] did not consider any specimen results collected and submitted while we were on the [Palomares] site, working with constant exposure to plutonium and other radioactive materials. Obviously, that stupid, arbitrary, non-scientific decision resulted in the ‘desired’ mathematical result of our exposure of 4.6 rems — slightly less than the [allowed maximum] of 5.0 rems — therefore, we were ‘not exposed.’
“To me John, this is evidence of the AF/SG Staff knowingly, and purposely, falsifying the official data to demonstrate our ‘non-exposure.’”— Victor Skaar