Yale Law School students in Connecticut filed the request with the U.S. Court of Appeals for Veterans Claims on behalf of veterans who sought disability benefits from the VA but were denied. The students represent Air Force veteran Victor Skaar, of Nixa, Missouri, and want to include other veterans who believe they deserve VA benefits.
The motion names Veterans Affairs Secretary David Shulkin as the defendant. The VA said Monday it hadn't seen the filing and couldn't address it.
On Jan. 17, 1966, a U.S. B-52 bomber and a refueling plane crashed into each other during a refueling operation near the southern Spanish village of Palomares, killing seven of 11 crew members but no one on the ground. At the time, the U.S. was keeping nuclear-armed warplanes in the air near the Soviet border as the Cold War was in full swing.
The midair collision resulted in the release of four U.S. hydrogen bombs. None of the bombs exploded, but the plutonium-filled detonators on two went off, scattering 7 pounds (3 kilograms) of highly radioactive plutonium 239 across the landscape.
The 1,600 servicemen who were sent to the crash site area to recover the weapons and clean up the contamination were exposed to dangerous levels of radiation daily for weeks or months at a time, according to the court motion filed Monday. Many of the servicemen later developed various forms of cancer, blood disorders, heart and lung dysfunction and other sicknesses but were denied disability benefits by the Department of Veterans Affairs.
"This class action seeks to compel the VA to acknowledge that veterans at Palomares participated in a radiation-risk activity that would make any radiogenic conditions they developed presumptively service-connected," said Derek Mraz, one of the Yale students working on the case. "The VA acknowledges this service connection for many other atomic veterans."
Skaar, the Air Force veteran, said he suffers from a blood disorder and developed melanoma and prostate cancer, which were successfully treated. He said he believes his ailments were related to his service in Palomares.
Skaar, 81, said he and other military members responded quickly to the Palomares accident and did not wear protective clothing or masks as they determined the scope of the contamination and "cleaned" it up. The cleanup involved removing topsoil in some areas and hosing down buildings with water.
Skaar said he and his fellow servicemen did what they were ordered to do without complaint at Palomares and now feel betrayed by their government.
"It's absolutely ridiculous to see how we have been treated," he said. "We're all hurt. We were ignored, absolutely ignored."
The Yale students said they believe this is the first federal appeals court case involving Palomares veterans. The Court of Appeals for Veterans Claims, which hears appeals of VA denials of benefits, only recently was given authority to hear class action cases, they said.
The law school students also sued the Department of Defense in October on behalf of veterans groups seeking to compel it to release records relating to the Palomares accident, including environmental testing data and urine testing results. A department spokesman said he could not comment on pending litigation.
The Yale students said original testing showed that many Palomares veterans were exposed to dangerously high levels of radiation, but a 2001 report commissioned by the VA concluded those results were "unreasonably high." And in 2013, VA officials used the 2001 report to conclude the veterans' exposure to radiation wasn't high enough to qualify them for free VA medical care and other benefits.
The students said the report and the 2013 conclusion are flawed.
U.S. Sen. Richard Blumenthal, D-Connecticut, said the VA needs to take another look at the veterans' claims.
"These veterans were exposed to dangerous radiation while they faithfully served our nation in the cleanup of the hydrogen bomb accident," he said in a statement. "They deserve a fair and consistent process for determining veterans benefits related to such exposure."
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