VA Destroyed Data on A-Bomb Tests Sought in Suit, Pair Testify

Government officials withheld and destroyed certain documents sought in a landmark lawsuit filed by soldiers exposed to atomic bomb tests in the 1940s and ‘50s, two Veterans Administration workers testified Thursday.

Lawrence V. Nicholson, quality review chief for the VA pension service, and Ronald B. Abrams, a legal consultant, made their statements before U.S. District Judge Marilyn Hall Patel, who is investigating allegations that the VA disposed of documents sought by lawyers for the plaintiffs in the case. It was estimated that the disposed of documents would have filled a dozen wastebaskets.

Patel, who is expected to finish hearing testimony on the matter today, is considering whether to find the government in contempt of court, a ruling that could result in fines against a number of government entities--from the entire VA to Atty. Gen. Edwin Meese III.

Several other VA employees brought out from Washington to testify during the first two days of the hearing denied that documents were withheld or destroyed. But others have supported allegations made earlier this year in two anonymous letters to plaintiffs’ lawyers that files at VA headquarters in Washington were systematically culled and potentially damaging material destroyed.

At one point Thursday, the judge flatly asked Nicholson: “Your opinion is, ‘Yes, documents were removed from the files after the (official) document request was received,’ is that correct?”

Nicholson paused, then answered, “Yes, it is.”

Later, Abrams, who is an attorney, said he had discovered at least four file folders of what he believed to be pertinent material that the VA had not given up in response to lawyers’ requests for relevant documents.

He also testified that he was told by his agency superiors not to mention the material in memoranda or other written documents and not to bring any of the material with him when he came to San Francisco to testify before Patel.

“It sounds like someone has been trying to squelch him,” said Gordon P. Erspamer, the San Francisco lawyer representing the so-called atomic veterans in their lawsuit seeking disability and death benefits from radiation-related illnesses that they allege resulted from their exposure to atomic bomb tests.

Gena Cadieux, a Justice Department attorney representing the government in the case, declined to comment.

Earlier in the proceeding, another consultant, Barry S. Boskovich, said some of his co-workers had bragged to him about throwing out some files sought in the case even after the documents were formally requested.

When he told a supervisor about the coffee-break chatter, Boskovich said he was threatened.

“He (Ted Spindle, assistant director of adjudication procedures) told me I should stay out of it,” Boskovich testified. “He told me I was not to put anything in writing and if I found out anything, I should go to him. I said I was concerned about the agency, and he said I should be concerned about myself and my family.”

The man Boskovich named as having talked about actually disposing of files, Stephen F. Tomasek, denied it under oath.

“By the time I heard about the request for documents (for the lawsuit), everything had already--weeks before--been removed” as part of a routine file drawer “house cleaning,” he said.

Tomasek said he had “no recollection” of telling Boskovich that he continued to dispose of files after the court requested to see them.

Tomasek and others testified that the disposal of files came at the request of Vivian L. Drake, who was then secretary to one of the assistant directors of the VA’s compensation and pension service. Because of her role, some employees said they believed her boss, Michael A. Dunlap, had actually ordered the purge, but Dunlap denied that under oath.

Drake testified that she proposed purging the files of outdated material last April, in part because they were too thick to use. But the purge did not actually start until June, just as lawyers were preparing to seek the files.

It is unclear whether the purge, which was said to have taken between three and five days, was finished before or after a formal request for the files was received by the VA.

Remaining files are currently sealed under two federal protective orders.

Erspamer originally sought documents from the VA to substantiate his claim that the agency’s current informal, non-adversarial arbitration hearings are not sophisticated enough to deal with the complex issue of such radiation-related illnesses as cancer, which can take decades to develop after initial exposure to nuclear fallout.

Specifically, he is seeking to reverse a federal limit on the amount of money a veteran can pay a lawyer to represent him in the VA arbitration process. The current limit, set in 1862, is $10.

Erspamer says this limit effectively prevents aggrieved veterans from obtaining adequate representation. He claims that veterans with expert representation--beyond what is provided by established veterans’ organizations--are much more likely to have their claims approved.

As many as 250,000 veterans are believed to have been exposed to the atomic tests, either during test explosions in Nevada or on Pacific atolls or as occupation troops sent to the atomic-bombed cities of Hiroshima and Nagasaki in Japan. About 5,000 of these veterans are involved in the class-action suit.

The government pays about $1,600 a month for full disability and about $600 a month in death benefits to family members of deceased veterans, Erspamer said.