VA Official Ignores Agent Orange Facts, Blames Media “Hype” for Thailand “Problem”

CCK Law: Our Vital Role in Veterans Law

Last week (June 12, 2017), ProPublica reported that a key Veterans Affairs official – Jim Sampsel – has downplayed the risks of exposure to chemical herbicides like Agent Orange and questioned the findings of scientists, journalists, and the VA’s own Board of Veterans Appeals. The story is the most recent addition to ProPublica’s ongoing investigative series “Reliving Agent Orange.”

Sampsel is a lead analyst within the VA’s Compensation Service, which works on disability rating policy and procedure. As such, VA turns to him as their subject matter expert on Agent Orange related issues.  In March, Sampsel told a VA advisory committee he believes much of the renewed attention to Agent Orange and its harmful effects is the result of media “hype” and “hysteria,” according to a transcript of the meeting released to ProPublica.

“When it comes to Agent Orange, the facts don’t always matter,” said Sampsel, himself a Vietnam veteran. “So we have to deal with the law as written.”

You can read the original article here.

In this article, we’ll dig a little deeper into the meeting transcript and further investigate

• Sampsel’s role in creating Agent Orange policy at the VA;
• Sampsel’s endorsement of Dr. Alvin Young’s work on Agent Orange, which critics say is compromised by inaccuracies, inconsistencies or omissions of key facts, and relies heavily on his previous work, some of which was funded by Monsanto Co. and Dow Chemical Co., the makers of Agent Orange;
• Sampsel’s dismissal of alleged herbicide exposure outside of Vietnam (particularly Thailand exposure claims); and,
• Sampsel’s involvement in the creation of an Air Force Memo – later uncovered by CCK under FOIA – that continues to be used to deny thousands of Thailand exposure claims.

The Backstory

Sampsel’s Role at the VA

After learning of Sampsel’s comments, the VA was careful to distance itself from them. Responding to questions from ProPublica, VA stated, “Mr. Sampsel’s comments did not fully or accurately reflect VA’s position concerning these issues.”  Nonetheless, his “opinions” on Agent Orange related matters affect countless disability compensation claims.

But in a subsequent statement, VA said Sampsel’s quotes had been taken out of context and that he “is highly dedicated and respected within and outside of VA for the work he has done to establish many of the present policies that provide veterans, their families and survivors the benefits they are entitled to under the law.”

Sampsel works for the VA’s Compensation Service – a part of the Veterans Benefits Administration’s Central Office that regulates disability rating policy, procedure, quality assurance, and training. Part of his job at Compensation Service is monitoring and responding to the Agent Orange Mailbox.

At the advisory committee meeting, Sampsel explained that claims for Agent Orange exposure outside of Vietnam (for example, Thailand or Okinawa) are sent to the Agent Orange Mailbox. Once received, Sampsel reviews Department of Defense (DoD) documents “on Agent Orange use, testing, storage, and so on” and sends the claim back to the Regional Office with an assessment of whether or not there is evidence to support the claim.

Because Sampsel is charged with the determining exposure in non-presumptive Agent Orange claims, his “opinions” about the validity of scientific and investigative research are concerning. Moreover, Sampsel made it clear at the meeting that those opinions, and even the decisions he makes on the claims sent to the Agent Orange Mailbox, are largely based on the research of controversial scientist Alvin Young.

Referring to claims from the Mailbox, Sampsel said, “I will send it back to [the Regional Office] and say there’s no evidence for this, or maybe there is evidence. And what I use to determine that is DoD documents. And who produced those DoD documents was Dr. Alvin Young.”

The truth about these DoD documents is more complicated than Sampsel makes it out to be. Over a decade ago, Dr. Young was contracted by the government to supply a list of where Agent Orange was used, stored and/or tested.  The list, however, has not been updated since that time, and was based on what Dr. Young himself deemed “tactical” herbicides (as opposed to “commercial” herbicides). The distinction between “tactical” and “commercial” herbicides is notably absent from DoD records before 2009 and does not coincide with the language of the law.

So when Mr. Sampsel says he has reviewed DoD records to make a determination on an inquiry from the Agent Orange mailbox, in truth he has merely consulted the outdated and incomplete report by Dr. Young. And, as we will discuss in the next section, there are other reasons to doubt the objectivity of Dr. Young’s findings.

Dr. Alvin Young

In recent years, Alvin Young has been a consultant on herbicides for the DoD and the VA. But he began his career testing Agent Orange spraying methods stateside for the Air Force during the Vietnam War. Decades later, he helped develop a plan to destroy the remaining stocks of Agent Orange at sea – “a waste of good herbicides,” he’d said, according to ProPublica.

Originally trained as an agricultural scientist and crop physiology/biochemistry, Young got his Ph.D. in Agronomy (with a focus on herbicide physiology and environmental toxicology) in 1968. ProPublica and The Virginian-Pilot reported last fall that Young’s work has been criticized for inaccuracies, inconsistencies, and omissions of key facts.

“Most of the stuff [Alvin Young] talks about is in no way accurate,” said Linda S. Birnbaum, director of the National Institute of Environmental Health Sciences, part of the National Institutes of Health, and a prominent expert on dioxin. “He’s been paid a hell of a lot of money by the VA over the years, and I think they don’t want to admit that maybe he [isn’t] the end all and be all.” (By his own estimate, reports ProPublica, Dr. Young has been paid “a few million” dollars for government consulting work.)

In several studies done for the DoD, Young cited his own past work, some of which was funded by Monsanto Co. and Dow Chemical Co., companies that manufactured Agent Orange for the war. Young also served as an expert for the chemical companies in 2004 when Vietnam vets sued them.

Throughout his career, ProPublica says, Young’s fervent defense of herbicides hasn’t wavered: Few veterans were exposed to Agent Orange, which contained the toxic chemical dioxin. And even if they were, it was in doses too small to harm them. Some vets, he wrote in a 2011 email, were simply “freeloaders,” making up ailments to “cash in” on the VA’s compensation system

Sampsel cited Dr. Young’s research frequently at the advisory committee meeting. “I’m not the scientist,” Sampsel said at one point. “But I know that Dr. Alvin Young and the majority, the vast majority, of scientists don’t think that anybody gets any harmful effects from something that’s in the soil, buried in the soil.” Alvin Young was the only scientist cited by name at the meeting.

Thailand Claims: “Probably the biggest problem we have right now”

Sampsel, following Young’s example, is particularly skeptical of veterans who claim they were exposed to herbicides outside of Vietnam or the Korean DMZ.

“When we get to outside of Vietnam,” he said to the advisory committee, “there’s a lot of controversy about Agent Orange use. And primarily it’s media hype, in my opinion.”

After talking at length about what he says is a lack of evidence of Agent Orange in Okinawa, Sampsel moved on to Thailand veterans. In the past couple of years, he said, an increasing number of herbicide exposure-related claims are being submitted by Vietnam-Era veterans who served on Royal Thai Air Force bases during the war, rather than in Vietnam.

“Now,” said Sampsel, introducing the subject, “another big problem we have, probably the biggest problem we have right now, is Thailand.”

The Perimeter Policy

At the core of the Thailand “problem” is the VA’s Thailand base perimeter policy. The perimeter policy, first published in a Compensation Service bulletin in May 2010, allows Vietnam Era veterans to demonstrate herbicide exposure in Thailand if they can show that their duties placed them “on or near” the perimeter of their base.  The policy was later added to VA’s Adjudication Manual as protocol for processing herbicide exposure claims of Thailand veterans.

The perimeter policy is based on findings from the 1973 CHECO Report, which was declassified in 1989. The report documented “heavy use” of herbicides to clear brush and eliminate enemy cover along the perimeters of bases.

Sampsel implied that many Thailand veterans were taking advantage of the perimeter policy: “And so, you know, if they walked by the flight line, they saw a perimeter, they said, “I was near the perimeter.” And so we had multiple, multiple claims coming in and we had to deny those claims. And now we’re getting a lot of feedback.”  VA’s own policy, however, concedes herbicide exposure for veterans who were ”on or near” the perimeter.

“And I might add that BVA has granted several of those, too,” said Sampsel, referring to the Board of Veterans Appeals, which he had previously criticized as causing “a lot of, what I would call misinformation about Agent Orange issues.”

A member of the advisory panel responded: “A decision by the Board of Veterans Appeals is the secretary’s final decision. I mean, we can’t distance ourselves from the Board of Veterans Appeals. It’s part of the VA.”

The Air Force “Memorandum for the Record”

For years, the primary piece of evidence VA has used to deny exposure-related claims of Thailand veterans has been a “Memorandum for the Record” produced by the Air Force. The Memo contains multiple misrepresentations and inaccuracies, but most prominent is the argument that, while “tactical” herbicides were sprayed in Vietnam, the herbicides used in Thailand were “commercial” herbicides.

At the meeting, Sampsel used this very argument: “I’m sure a lot of veterans saw herbicides being used, because herbicides were used. The question is, is it “tactical herbicide,” like Agent Orange, or was it a commercial herbicide like was used on every military base? And used on many lawns in the United States?”

However, neither the CHECO report nor any other military records distinguish between “tactical” and “commercial” herbicides. During the war, the military did not make such distinctions even in their own supply chain. Herbicides containing the same dioxin-contaminated chemicals as Agent Orange could be ordered for unrestricted use.

Sampsel and Young’s use of the terms “commercial” and “tactical” in regard to herbicides conflicts with VA’s legal definition of an “herbicide agent” for the purposes of VA benefits. The law does not include terms such as “tactical” herbicide, “commercial” herbicide, or even the term “Agent Orange.”  Instead, the law requires exposure to the chemical “agents” contained in the herbicides used in Vietnam.  Those same chemicals were indeed used by the military in places other than Vietnam.

In the advisory committee transcript, Sampsel suggests that he was responsible for convincing the Air Force to write the Memorandum for the Record.

“I contacted the Department of the Air Force History and Heritage Center. I won’t go into the details behind that. But the head researcher over there, we had a long conversation,” he said.

In Thailand cases, Sampsel explained, the BVA sometimes remands a case when it needs more evidence to prove exposure to herbicides. Requests for this evidence are sent to the Air Force records department. The researcher Sampsel spoke with answered these requests.

“And I said, ‘Okay, if you don’t like that, if you don’t want to have to answer these all the time, why don’t you provide a memo from the Department of Defense, the US Air Force, and make a statement that there’s no evidence?’”

“So he did that, it was vetted by their general counsel,” Sampsel said. “We have a memo from the US Air Force saying there’s no evidence for any Agent Orange use on Thai bases.”

CCK Obtains the Memo

Before Sampsel could move on to herbicide-related claims from veterans stationed in Guam, a member of the advisory committee, Mr. Manar, asked: “Have you published that memo or any of the evidence associated with it?”

Sampsel responded: “Well, I don’t think I’m revealing anything confidential that there’s Chisholm Law Groups got a petition for rule-making pending, and they got it. They got it under a FOIA, from DoD, not from me. Not from us. So it’s pending. I don’t know what the outcome’s going to be.”

CCK has long been advocating that Vietnam-Era Thailand veterans are entitled to compensation for their herbicide-related disabilities. As part of a push toward regulatory recognition for these veterans, CCK submitted a Freedom of Information Act (FOIA) request for a number of documents related to these types of claims. And, as Sampsel stated, CCK succeeded. Once the Memo was released, we combed through it and thoroughly fact-checked every detail, identifying serious misrepresentations and inaccuracies. We hope that these findings will help us continue to hold VA officials accountable and further the cause of justice for Vietnam-era Thailand veterans.