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Vets Exposed to Radiation Lose Ruling
Knight Ridder | August 29, 2006WASHINGTON - Radiation exposure took Alice Broudy's husband a generation ago.
This week, a court ruling sliced away at her bid for redress.
In a quiet ruling that nonetheless resonates nationwide, a federal appellate court rejected efforts by Broudy and others seeking claims on behalf of "atomic veterans." The same court simultaneously rejected bids by other veterans exposed to biological and chemical agents.
Taken together, the dual rulings by the D.C. Circuit Court of Appeals will likely impede many veterans hoping for compensation. At the very least, it will complicate future claims.
"It's a significant ruling," Washington-based attorney David Cynamon, who represented veterans in both cases, said Friday. "Unfortunately, it's a significantly bad ruling."
A Department of Veterans Affairs spokesman couldn't be reached to comment.
Broudy, a resident of California's Orange County, has long been seeking full compensation for the death of her husband, a Marine major who was repeatedly exposed to radiation. She has company.
George Woodward, who lives north of Wichita, Kan., in the town of Miltonvale, was exposed to radiation during a 1955 test blast. Kathy Jacobovitch, a resident of Vashon Island, Wash., lost her father through exposure to contaminated ships in Puget Sound. Ernest Kirchmann, a 62-year-old Navy veteran who lives south of Minneapolis in tiny West Concord, who's filed a separate lawsuit, was exposed during a 1964 nuclear submarine accident.
"It isn't just my personal case," Broudy said Friday. "It's the entire veterans community. It makes me so angry."
Broudy married her husband, Charles, in 1948. Three years earlier, he'd walked the war-poisoned streets of Nagasaki. Within a decade, he was facing radiation in the Nevada desert. He died of lymphatic cancer in 1977. Though she has since received partial compensation, Broudy has been confronting the federal government for more. She has now lost three separate lawsuits.
"This closes the door," Cynamon said of the latest appellate court ruling, which was issued Wednesday. "It will make it very difficult, if not impossible, for individuals who are victimized by government cover-ups."
All told, an estimated 220,000 U.S. soldiers were allegedly exposed to radiation in the 1940s and 1950s. Some, such as William Yurdyga of Sacramento, Calif., claimed in an earlier lawsuit that they were exposed following the Hiroshima or Nagasaki atomic blast. Others claimed exposure during Cold War testing.
The three-member appellate panel wasn't ruling on whether the atomic veterans deserve compensation. A 1988 law provides that. To succeed, though, veterans must prove they were present at a radioactive site and that they contracted a radiation-related illness or were exposed to a cancer-causing radiation level.
Required military test records can be elusive. A 1973 fire destroyed many veterans' records, and veterans consider alternative "dose reconstruction" estimates inaccurate.
"You send a Freedom of Information Act request," Broudy said, "and you wait and you wait and you wait, and then maybe you get a piece of it, or you get nothing at all because they say it's classified."
The latest lawsuit sought to force Pentagon officials to release all relevant records. In the opinion written by Appellate Judge Thomas Griffith, appointed by President Bush last year, the court panel agreed unanimously that atomic veterans couldn't compel a massive release of all the Pentagon's relevant documents.
Instead, individual veterans must file individual claims.
If the Pentagon is "covering up records of medical tests that describe the amount of radiation to which these veterans were exposed, FOIA (the Freedom of Information Act) provides a potential remedy," Griffith wrote.
A new study by Melinda Podgor for the Elder Law Journal found that 18,275 atomic veterans had filed for compensation as of October 2004. Only 1,875 claims were granted.
On a separate but related legal track, veterans such as Columbia, S.C., resident John Goricki and Homestead, Fla., resident Richard B. Holmes were pursuing claims following exposure during the Shipboard Hazard and Defense project of the 1950s and 1960s.
Project SHAD allegedly exposed up to 10,000 soldiers and sailors to biological and chemical agents. Like the atomic veterans, SHAD survivors claim that the Pentagon clings to secret information. Like the atomic veterans, they couldn't persuade the appellate court to order the release of all relevant documents.
The veterans "can still seek, through FOIA, the documents they believe they need to pursue their benefits claims," the appellate panel ruled.
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