An appeals court on Friday ruled that elderly disabled veterans who were exposed to ionizing radiation while cleaning up a 1966 nuclear bomb disaster in Spain are eligible to sue for disability benefits for their related illnesses in a class action suit.
The U.S. Court of Appeals for Veterans Claims issued a 6-3 decision in the case Skaar v. Wilkie certifying the class of veterans, who have been denied disability benefits for illnesses they have suffered as a result of their service in Palomares, Spain. About 1,600 veterans deployed there after a B-52 Stratofortress bomber collided in mid-air with a refueling tanker and crashed. Four hydrogen bombs were released, and two exploded conventionally, littering the countryside with radioactive plutonium dust.
Veteran Victor Skaar, a retired Air Force chief master sergeant who participated in the cleanup, filed the case against Veterans Affairs Secretary Robert Wilkie.
After serving in Palomares, Skaar later developed the blood disorder leukopenia and believes his radiation exposure caused it, the court said in its decision. Air Force radiation dose estimates found his level of exposure was far below the level that would have been required to cause his disability, and the Board of Veterans Appeals denied his claim that his disability was connected to his service.
The move could lead to a class-action lawsuit against the department over the denial of veterans benefits.
“For more than 50 years, the VA has denied Palomares veterans benefits for our service recovering, detecting and removing 5,400 drums of radioactive contamination at Palomares,” Skaar said in a release from the Veterans Legal Services Clinic at Yale Law School, which represents both him and the class. “I am happy that the court’s opinion means I can continue to fight for recognition alongside my fellow Palomares veterans, many of whom are too ill to fight on their own, and their widows. I have been fighting this battle since I was 45 years old and am hopeful that the court’s decision will finally allow me, at the age of 83, to receive benefits for my numerous radiation-related illnesses, including cancer.”
It is the first time the veterans claims court has certified a class action suit from a direct appeal from the VA benefits system. The court did not rule on Skaar’s claim that his disability is, in fact, service-connected, but found the veterans satisfied the requirements for class certification used in other federal courts.
“Our decision today heralds the beginning of an era in which we will entertain, but by no means always certify, class actions in the first instance, making us the only federal appellate court in the nation to do so,” Judge Michael Allen wrote in the court’s majority opinion. Our “nation’s veterans deserve no less.”
The Vietnam Veterans of America and the environmental group Friends of the Earth applauded the decision, as did Sen. Richard Blumenthal, D-Conn.
“The Palomares nuclear disaster — one of the largest in history — caused untold suffering and pain to the men and women in uniform sent to the clean-up,” Blumenthal said. “This ruling represents one more step forward in the fight to provide these veterans and their families the health care and benefits they deserve. I commend the diligent efforts of the Yale Veterans Legal Services Clinic in this litigation and will continue to advocate for passage of the Palomares Veterans Act, providing veterans with statutory presumption that their illnesses and diseases are caused by their exposure to radiation at Palomares."