1 in the United States Court of Appeals for Veterans
Total Page：16
File Type：pdf, Size：1020Kb
IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS VICTOR B. SKAAR, ) ) Appellant, ) ) v. ) Vet. App. No. 17-2574 ) ROBERT L. WILKIE, ) Secretary of Veterans Affairs, ) ) Appellee. ) NOTICE OF CASE DEVELOPMENT To date, the parties have devoted a substantial amount of briefing to the issue of whether the radiation-dose estimates for Palomares Veterans that the Secretary uses to adjudicate compensation claims comply with 38 C.F.R. § 3.311. (See Appellant’s April 6, 2018, Brief at 16-26; Secretary’s July 23, 2018, Brief at 32-37; and Appellant’s August 24, 2018, Reply Brief at 17-24). Under § 3.311, the Secretary relies on, inter alia, information provided by the service department when preparing a dose estimate. See 38 C.F.R. § 3.311(a)(2)(iii). The Air Force Surgeon General Public Affairs Office recently released a report titled Topical Issues for Assessment of dose to Palomares Accident Recovery Workers (1966) (Palomares Topical Issues), prepared by the United States Air Force Safety Center.1 (Attached as Exhibit). In this report, the Air Force 1 The Air Force Medical Service lists this report among others pertaining to the Palomares incident on its website. See Air Force Medical Service, Resources, 1 Safety Center acknowledges that, “[o]ver the years, the [Air Force] has been scrutinized for the approach used in estimates” in Palomares Veterans’ cases. Palomares Topical Issues at 1. The report responds in particular to a paper co- authored by Dr. Frank von Hippel, which was published in the journal Health Physics in December 2019. See, e.g., Palomares Topical Issues Report at 16, 32- 33, 42-43, 53. Dr. von Hippel’s report from two years earlier, which also criticizes the Air Force’s approach to these cases, appears in the Supplemental Record Before the Agency, pages 2635-2650. The Air Force Safety Center’s newly released report therefore addresses many of the technical issues raised in this case. The Secretary does not ask the Court to evaluate or find facts about this report in the first instance. Indeed, the Court’s review is limited to evidence in the record before the Board of Veterans’ Appeals and this newly released report was not before the Board. See Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990) (holding that review in this Court shall be on the record of proceedings before the Secretary and the Board); see also 38 U.S.C. § 7252(b). Moreover, the Court may Reading Room, Palomares, https://www.airforcemedicine.af.mil/Resources/Reading-Room/Palomares/ (last visited August 24, 2020). A direct link to the report is located at https://www.safety.af.mil/Portals/71/documents/Weapons/Palomares%20Dose% 20Assessment%20Rpt%207%20Jul%202020.pdf?ver=2020-08-05-113936-200. Though the report is dated July 7, 2020, the Secretary’s counsel understands that it was not approved for public release until more than three weeks later. 2 not find facts in the first instance. Emerson v. McDonald, 28 Vet.App. 200, 210-11 (2016); see 38 U.S.C. § 7261(c). But on the other hand, parties have a “continuing duty to inform the Court of any development which may conceivably affect an outcome.” Solze v. Shinseki, 26 Vet.App. 299, 302 (2013) (citation omitted). When any such development occurs, it is “irrelevant” whether neither party believes it would impact the Court’s ruling because “that [is] not a question within the parties’ power to decide.” Id. If the Court believes this report may affect the outcome of the question before it, it should take appropriate steps to ensure that the report is reviewed in a manner consistent with title 38 limitations. Again, the Secretary is not asking the Court to evaluate this report in the first instance. The Secretary simply wants the Court to know this report exists because it conceivably could affect the Court’s decision. Solze, 26 Vet.App. at 302. And, if the Court agrees that the report may affect the outcome here, the Court should take appropriate action, as discussed above. FOR APPELLEE: WILLIAM A. HUDSON, JR. Principal Deputy General Counsel MARY ANN FLYNN Chief Counsel /s/ Megan C. Kral MEGAN C. KRAL Deputy Chief Counsel 3 /s/ Mark D. Vichich MARK D. VICHICH Senior Appellate Attorney Office of General Counsel (027L) U.S. Department of Veterans Affairs 810 Vermont Avenue, NW Washington, DC 20420 (202) 632-5985 Attorney for Secretary of Veterans Affairs 4 Appellee’s Exhibit HEADQUARTERS AIR FORCE SAFETY CENTER Topical Issues for Assessment of Dose to Palomares Accident Recovery Workers (1966) Steven E. Rademacher Final 7 July 2020 Headquarters, Air Force Safety Center Approved for Public Release, Distribution is Unlimited Weapons Safety Division 9700 Avenue G, Southeast Kirtland Air Force Base, NM 87117-5670 Executive Summary On 17 January 1966, a B-52 and KC-135 collided during a mid-air refueling operation over southern Spain. In addition to the mid-air explosion of the KC-135 aircraft, the B-52 suffered damage that caused the plane to break-up mid-air, with the jettison of four nuclear weapons. Two of the four weapons detonated upon impact, which with the influence of winds at the time caused distribution of weapons grade plutonium (WGP), highly enriched and depleted uranium (HEU and DU, respectively), and tritium to the environment. It is important to note that the detonation only involved conventional high explosives; there was no nuclear contribution. The other two weapons were recovered intact – one from land and the other from the Mediterranean Sea. The majority of the residual radiological contaminants were retained in surface soils in the small rural village of Palomares. The primary radiological concern for workers was the inhalation of plutonium. All four of the KC-135 crew died in the accident, while four of the seven crew of the B-52 survived. A small Air Force (AF) team departed from Torrejon Air Base (AB), Spain, within about two hours of notification of the accident. By the evening, 49 US personnel had arrived at the accident site, with over 650 personnel within a few days. The large majority of military personnel supporting the land-based recovery operation were AF, primarily from two Spanish bases: Torrejon AB and Moron AB. Over the course of the recovery operation, 17 January to 7 April 1966, about 1,600 personnel supported the land portion of work. In 2000, based upon veteran inquiries of potential health effects from their on-site support to the recovery operations to the Veterans Administration (VA), the AF Surgeon General’s Office (AF/SG) contracted with Labat-Anderson, Inc. to assess radiation exposure potential for workers. The primary focus of their work was evaluation of urine sample results from recovery workers. The report also discussed some environmental sampling performed by the Spanish, shortly after completion of the recovery action. The latter information was based on an AF/SG request to assess supporting environmental data. Labat-Anderson provided estimated doses to twenty-six individuals among the 400+ recovery workers that submitted urine samples, as part of an Air Force-directed re- sampling program in the summer of 1966 for Palomares recovery workers. These 400+ individuals had the highest predicted inhalation intakes of plutonium among about 1,400 samples collected by workers on-site. Due to the on-site collection and the gross -particle analysis laboratory method, a sizeable fraction of these results had questionable utility for dose assessment. The primary concern was cross-contamination of urine samples with plutonium that was not metabolized by the body. Unless sampling methods limit this potential contamination, sample results will be high-biased and misleading. Individuals with the highest predicted intakes based on initial urine sampling results were deemed implausible when balanced against the results of air sampling conducted during the recovery. Other important factors considered were airborne concentrations predicted from historical resuspension studies models, and a large number of initial urine samples from other recovery workers that appeared more reasonably consistent with expected intakes based on airborne sampling results. High levels of inhaled plutonium have been linked to increased risk of lung, liver, and bone cancer based on animal research studies and epidemiological studies of former Soviet Union plutonium workers (Labutina et al. 2013). The majority of claims received by Palomares recovery ii workers have been based on malignancies not linked to inhalation of plutonium. Still, other claims are based on non-radiogenic conditions. This is common and experienced by the Safety Center’s history of evaluating claims for other occupational exposure radiation cases. Regardless of a recovery workers medical condition, all claims are reviewed with the same level of care, with an appropriate dose recommendation being made to the VA. To date, the AF/SG has received about 30 claims from AF Palomares recovery workers. Additionally, the Safety Center has been requested to offer guidance to the US Army and US Navy for a few claims submitted by their personnel. Over the years, the Air Force has been questioned for the approach used in estimates and/or the outcome of a VA decision, in particular to Palomares claims. This document provides a discussion of issues pertinent to assessment of doses for the Palomares recovery workers. Due to the issues that have been raised over the years, this report is written in a topical manner. The primary issues relate to estimates of plutonium inhalation intakes (subsequently directly impacting dose estimates) and probability of causation assessments (PoC). Both of these factors are key in VA decisions. The Figure below provides an illustration of the key factors that contribute to the review and adjudication of radiation exposure claims for Palomares recovery workers.