Yale University. (Photo: Shutterstock.com)

In a groundbreaking ruling, the Washington D.C.-based U.S. Court of Appeals for Veterans Claims has certified a class of nearly 1,600 elderly disabled American veterans exposed to ionizing radiation while cleaning up a nuclear bomb disaster in Palomares, Spain, in 1966.

The Dec. 6 decision in Victor Skaar v. Robert Wilkie, Secretary of Veterans Affairs marks the first time the U.S. Court of Appeals for Veterans Claims has certified a class on direct appeal against the Department of Veterans Affairs.

Plaintiffs in the case were assisted by about a dozen law students from the Veterans Legal Services Clinic at Yale University who worked pro bono under the direction of attorneys and Yale instructors Michael Wishnie, Aaron Wenzloff and Renee Burbank.

The lawsuit stems from the approximately 1,600 veterans who deployed to Palomares after a U.S. Air Force bomber went down in a mid-air collision, releasing four hydrogen bombs. Two of the bombs exploded conventionally, spreading plutonium radiation across the Spanish countryside.

Many of the veterans involved in the cleanup have since been afflicted with different forms of cancer and other diseases they have attributed to their service at Palomares, but the government has refused to award disability benefits, maintaining there is no proof radiation caused harm to the veterans.

The court's Dec. 6 ruling now means a three-person court panel will work with the VA to assure each veteran is evaluated for radiation-related diseases. Eligibility for benefits will be evaluated on a case-by-case basis.

In a statement, Skaar elaborated on his decadeslong fight. "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," he said. "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."

In writing for the appeals court's majority, Judge Michael Allen said, "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. Our nation's veterans deserve no less."

The ruling covers all associated veterans who were denied claims for benefits. It also covers veterans who file for future appeals in the case. However, the ruling does not include veterans who were denied claims and did not appeal.

Three students from the Yale clinic, John Super, Meghan Brooks and Lily Halperin, discussed the case Wednesday, including how they were able to beat back the Department of Veterans Affairs and the agency's legal resources to prevail in the matter.

Super said he called Skaar at his Missouri home after the ruling and the retired Air Force chief master sergeant "was over the moon" with the ruling. Skaar has developed leukopenia, a blood disorder he attributes to being deployed to Palomares.

Meghan Brooks, who graduated from Yale Law School this year, worked on the case from its beginning 2017. "We were working with another individual, a very private person, on the case of Palomares and, while researching the matter, found a story about Palomares in the New York Times," she said. "We spoke to that reporter, reached out to other veterans to get more background on the case and eventually got in touch with Mr. Skaar."

Skaar, Brooks said, was the driving force behind a decision to file for class certification in December 2017.

"He applied for disability benefits in 1983 and was denied," Brooks said. "He has been fighting the VA for, literally, decades. At various points, he was told he was not exposed to radiation. But, he kept fighting. We learned that the legal challenges facing Mr. Skaar were not unique to him, but [faced by] all Palomares veterans."

Brooks said she spent "countless hours" on the legal case and helped file for class certification two years ago. She also gave rebuttal arguments before the court. "Basically, this was 2½ years of work for me," she said. "I did a lot of research, spoke to a lot of veterans and some widows. This ruling is just wonderful."

Lily Halperin, who will graduate from Yale Law School in the spring of 2021, said the next step is to notify eligible Palomares veterans of the court's ruling. 'We are working now on notifying the potential class members," she said. "We don't have a sense of how long this whole process now will take, but, hopefully, it will not take another two years."

Super, a U.S. Army veteran, said the court victory came down to the government acknowledging its veterans. "It's about the nation and the federal government fulfilling its promises to these veterans who raised their hand and took an oath and did their part," he said. "The government and VA need to do their part. "

Super continued: " It might be too late for some that have passed away, which is tragic, But, for those still around, it's a huge recognition. It's also giving them dignity for their service and the suffering they've encountered."

Department of Veterans Affairs Office of General Counsel attorneys Rich Daley and Mark Vichich represented the agency. Neither responded to a request for comment.