Monday, February 4, 2019

CAVC Issues Limited Remand to BVA in Skaar v. Wilkie

Last Friday, the Court of Appeals for Veterans Claims issued a limited remand to the Board of Veterans Appeals in the case of Skaar v. Wilkie.  The case involves a proposed class action lawsuit on behalf of veterans who claim to have been injured as a result of participation in a clean-up operation following an airplane collision which resulted in four hydrogen bombs being dropped over Palomares, Spain in 1966.  The plaintiff class is being represented by Yale Law School's Veterans Legal Clinic.  The following comes from a press release about the decision issued by the Clinic:

"In a 6-3 ruling last Friday, the U.S. Court of Appeals for Veterans Claims (CAVC) ordered the Board of Veterans’ Appeals to address appellant Victor Skaar’s argument
that the VA used scientifically unsound methodology to deny his disability benefits claims based on exposure to ionizing radiation. CMSgt. Skaar (ret.) is the lead appellant in a proposed class action of approximately 1,600 veterans deployed in a 1966 clean-up operation after an airplane collision dropped four hydrogen bombs over Palomares, Spain.

The significance of Friday’s opinion was evident in the four different opinions issued by the nine-judge court. “[W]e are overruling more than 2 decades of Court caselaw and changing long established procedural norms,” wrote Judge Mary Schoelen in a concurring opinion. Yet the interim order was appropriate, Judge Schoelen explained, in part due to “the harm that could potentially befall a sizeable class of veterans” were the Court to proceed under its prior practices. “For more than 50 years the VA has denied that cleaning up the nuclear bomb disaster at Palomares impacted our health,” said Mr. Skaar. “I have fought a long battle to get to this point, and am gratified that this order recognizes that the VA was wrong to completely ignore my challenge to its broken system that continually ignored our existence and exposure.”


The CAVC’s order assigns error to the BVA for failing to address Mr. Skaar’s argument, and gives it only 30 days after he submits additional evidence to determine whether the VA’s dose estimate methodology uses “sound scientific evidence.” The case will then return to the CAVC for further briefing and a decision, including whether the Palomares veterans’ challenges against the VA will be resolved on a class basis."

A full copy of the Order can be found here:

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