Last month, the U.S. Court of Appeals for Veterans Claims ordered the Board of Veterans’ Appeals to respond to lead appellant Air Force Chief Master Sgt. Victor Skaar’s argument that the Department of Veterans Affairs wrongly denied his disability benefits claims based on his exposure to ionizing radiation. Skaar is represented by Yale Law School’s Veterans Legal Services Clinic, which represents veterans in litigation on matters related to benefits, discharge upgrade, immigration and pardons.
The class action lawsuit represents approximately 1,600 veterans who were deployed for a cleanup mission after a collision between two U.S. Air Force planes in 1966 dislodged four hydrogen bombs and released clouds of radioactive dust over Palomares, Spain. Skaar first filed a motion for class certification on Dec. 11, 2017, requesting that the Court of Appeals certify a class of veterans “who were present at the 1966 cleanup of plutonium dust at Palomares, Spain and whose application for service-connected disability compensation based on exposure to ionizing radiation [VA] has denied or will deny,” according to the Court of Appeals’ Feb. 1 order. In order for a class action lawsuit to proceed, the class must be certified.
The appeal found that the VA must reassess its failure to recognize the Palomares cleanup operation as a “radiation-risk activity,” according to Tomo Takaki LAW ’20, who works in the clinic. In addition to arguing that the VA violated veterans’ right to due process, the clinic posits that the methodology used to estimate radiation exposure does not constitute “sound scientific evidence,” Takaki added. Law students in the clinic are working under the supervision of clinical professor of law Mike Wishnie and clinical lecturer in law Renee Burbank.
Corey Meyer LAW ’19, who also works in the clinic, said that the Court of Appeals found that the adjudicator at the VA did not “provide an adequate explanation” for how the VA chose its methodology for measuring the amount of radiation to which the veterans were exposed.
“Securing disability benefits would be life-changing for some of these veterans, but for many, what matters most is that their government recognize that they served at Palomares, that they were exposed to radiation without any protection or follow-up testing or treatment, and they have suffered as a result,” Takaki said.
Before 2018, the court did not hear class action lawsuits. Skaar’s case is one of the first such litigations it adjudicated.
Meyer added that the “huge benefit” of the decision is providing a new procedural mechanism for the Court of Appeals to hold the VA accountable.
He said that the case is one of several recent ones where the court “has decided to finally flex its muscle and exert the oversight authority Congress intended.”
“The ruling in Skaar sets up a precedent for retaining CAVC power and authority over an issue while the VA resolves problems found by the CAVC,” Meyer said.
The Veterans Legal Services Clinic was established in 2010.
Samuel Turner | firstname.lastname@example.org