The Origins of the Agent Orange Act of 1991

On February 6, 1991, President George H. W. Bush signed the Agent Orange Act of 1991. This act was the first piece of legislation to officially establish a group of presumptive conditions for Vietnam Veterans exposed to herbicides, meaning that Veterans with non-Hodgkin’s lymphoma, soft tissue sarcomas, and chloracne could now receive medical benefits from the Veterans Administration (VA) as a result of their service in Vietnam. 

This legislation was applauded by Veterans groups, government officials, and the general public. Yet, it was rooted in over a decade of fierce debate, VA institutional resistance, and confusion over the long-term health effects of Agent Orange and dioxin exposure.

Agent Orange was the most common of the so-called Rainbow Herbicides used during Operation Ranch Hand in the Vietnam War. It was made up of a 50:50 mixture of 2,4-D and 2,4,5-T, the latter of which contained a contaminant known as TCDD, a type of dioxin or organic pollutant. The herbicide was remarkably effective at clearing jungle foliage and depriving Viet Cong forces of both cover and workable farmland. Operation Ranch Hand lasted from 1962 until 1971. 

By the time the Air Force ceased these herbicide spraying missions, Agent Orange alone accounted for 11.22 million of the over 18 million gallons of herbicide sprayed in Southeast Asia. Many Veterans still recall being sprayed with Agent Orange but were instead "treated" with malathion, sprayed from C-123 Tail Number 362 for insect control. Planes spraying for insect control had the green paint removed as the malathion would foul the surfaces.

By the late 1970s, the public was seriously questioning the health effects of dioxin exposure. Many Veterans claimed (and VA totally denied) Agent Orange or other herbicides were behind their chronic fatigue, vision loss, numbness, cancer, birth defects in their children, and a myriad of other health concerns. VA began receiving medical claims from Veterans alleging dioxin exposure at least as early as 1977, but, as media coverage on the issue grew, so did the number of claims. At the time, only chloracne, a rare skin condition, had been scientifically linked to dioxin exposure. If Veterans claimed that contact with herbicides was the cause for any other illnesses, VA ultimately denied all their medical claims "due to the lack of scientific evidence."

However, VA did take some baby steps to address the issue, mostly because of Veteran pressure, some press coverage, and a determined Veteran's advocate named Maude DeVictor. In 1978, VA established an internal Agent Orange Registry and began conducting in-depth medical examinations for Veterans claiming they were exposed to Agent Orange. They also assigned “environmental health physicians” at each of their medical centers who were specifically tasked with gathering information related to chemical exposures. In 1979, they established the VA Advisory Committee on Health-Related Effects of Herbicides, and in the early 1980s, they also created the Agent Orange Projects Office, the Chloracne Task Force, the Data Analysis Task Force, and the Agent Orange Research and Education Office, each of which were tasked with studying various aspects of Agent Orange exposure among Veterans.

Under Congressional pressure, VA also launched multiple weak-kneed outreach efforts related to dioxin exposure. The Agent Orange Bulletin was launched in December 1980 and provided updates on Agent Orange activities for VA medical center staff. For Veterans themselves, VA released a 30-minute videotape titled Agent Orange: A Search for Answers, as well as pamphlet titled “Worried About Agent Orange?” which was distributed to all Veterans during their Agent Orange medical examinations. Both the videotape and pamphlet emphasized the fact that chloracne remained the only known medical condition directly attributable to herbicide exposure. 

In November 1982, VA also introduced the Agent Orange Review, a recurring newsletter meant to keep Veterans up to date on the latest developments on Agent Orange research and policies. Even so, official VA policy still called for physicians in VA medical centers to refrain from prematurely attributing a Veteran’s ill-health to Agent Orange exposure until more concrete evidence proving association became available: VA physicians were prohibited from offering opinions on Agent Orange-suspected illnesses.

Multiple agencies, including VA, began publishing the results of dioxin-related studies throughout the 1980s. Most of these initial studies maintained that there was no link between dioxin exposure and long-term health problems, although it was difficult to prove which had Veterans had been exposed while in the service. In 1990, however, studies by the CDC and VA’s Advisory Committee on Health-Related Effects of Herbicides determined that non-Hodgkin’s lymphoma and soft tissue sarcomas among Vietnam Veterans were “at least as likely as not” connected to herbicide exposure. 

VA’s secretary at the time, Edward J. Derwinski, was especially invested in the Agent Orange issue. The day after each of these studies were released, he classified each respective illness as service-connected for Vietnam Veterans. These classifications officially became law with the Agent Orange Act of 1991.

Upon the passage of the bill, Derwinski noted that “VA has [always had] one overriding goal in this area: providing, as best we can, the truth for our Vietnam Veterans about the effects of exposure to Agent Orange. Because, in our opinion, that is the goal of this fine legislation, we are pleased to offer our support.” Derwinki’s “open mind” on the Agent Orange debate was lauded by the public and members of Congress alike. Representative Thomas Daschle, who had previously been critical of VA efforts concerning herbicide exposure, commented that Derwinki’s “willingness to listen to Veterans, to reexamine the scientific evidence, and to give Veterans the benefit of the doubt has been crucial to the effort to redefine the federal government’s response to the Agent Orange problem.”

Still, neither Derwinki nor the VA moved on Agent Orange benefits until Congress shoved the 1991 Agent Orange Act down the VA's throat.

While many of the questions surrounding Agent Orange remained, the Agent Orange Act of 1991 was a turning point in providing Vietnam Veterans with needed care, and over the following decades, VA classified over a dozen additional conditions as presumptive for Veterans who were exposed to herbicides.

VA's initial denial of C-123 Agent Orange exposure claims - ABSURD!

A little history about VBA's deceptions and cruelty in treating Agent Orange claims:

We started discussions with VA about C-123 Agent Orange exposure in 2010 and met brick-wall resistance. In 2012 we were told during an in-person conference with Mr. Tom Murphy (Director of VBA Benefits Administration) and his staff that VA had already concluded no C-123 crew or maintainer exposure was possible.

Adding a kicker that this, he told me directly that regardless of what medical, scientific or military evidence we might present then or in the future, absolutely no C-123 claims for Agent Orange exposure would ever be approved. 

For claims that were denied and then appealed to the Board of Veterans Appeals, here is the boilerplate denial verbiage they came up with:

VA's Office of Public Health is noted to have thoroughly reviewed all available scientific information regarding the exposure potential to residual amounts of herbicides on the C-123 aircraft surfaces. It was concluded that the potential exposure for the post-Vietnam crews that flew or maintained the aircraft was extremely low and therefore it was concluded that the risk of long-term health effects was minimal.

Naturally, I inquired as to exactly what was meant by their "thoroughly reviewed all available scientific information". VA's answer was they'd simply reached a staff consensus in the VHA Post-Deployment Public Health office that no exposure threat existed. And if there was any exposure, it wasn't significant "enough" to cause any adverse health effects. In other words, there was NO such thorough review of relevant literature and only a knee-jerk decision to deny claims.

And boy, did they ever deny claims! Every single one of them.*

I'll point out here that prior to meeting with Murphy, VA had been provided input from numerous scientific and medical authorities as to our exposures. Columbia University, Yale, University of Texas, Oregon Health Sciences University and others had specifically concluded that C-123 vets had been exposed to Agent Orange. I'll remind readers that VA is required to give every benefit of the doubt to veterans' claims, to review claims sympathetically and in a pro-veteran manner yet"required" didn't seem to apply to C-123 claims.

Other federal authorities had also chimed in to support us against VA: the CDC Agency for Toxic Substances and Disease Registry had reported to VA that C-123 veterans experienced 180 times the published military exposure threshold for Agent Orange. Further, that we have a 200-fold greater risk of cancers developing. Eventually, even the Army's Joint Services Records Research Center tried to tell VA we met exposure requirements, but VA's Mr. Jim Sampsel refused to recognize such input. Note here that VA's own regulations specified that Joint Services Records Research Center input was authoritative as regards Agent Orange exposure claims. Nonetheless, Sampsel disputed everything. (Later, Sampsel even told VA's Disability Compensation Committee that Agent Orange was merely hype and hysteria.)

It seems VA was very selective as to what "available scientific information" they were willing to consider, and that nothing affirming the veterans' exposure would be acceptable to them. And nothing ever was acceptable, at least until the Institute of Medicine virtually jammed it down their throats in January 2015.

* Here was a special VA deception. Every single C-123 claim was denied until June 2015, yet Sampsel and Murphy insisted there was no "blanket denial" policy. Clearly, their only policy was that none would ever be approved regardless of what the policy might be named. They disingenuously insisted that each claim was carefully evaluated on its merits, while quietly pretending that C-123 claims were without any merit regardless of medical and scientific evidence.

GAO Criticizes DOD's Agent Orange Site Report

The Government Accountability Office has released its critical report entitled AGENT ORANGE: Actions Needed to Improve Accuracy and Communication of Information on Testing and Storage Locations."

Key point: Both VA and DOD have for decades relied on a fatally-flawed list prepared for DOD by Dr. Al Young, AKA "Dr. Orange." VA has employed his reports principally to deny veterans claiming exposure to Agent Orange. That's right...our famed nemesis has once again been found inadequate in the work he's done, while making millions from VA and DOD writing about this stuff. For years, VA adjudicators, the Board of Veterans Appeals and the US Court of Appeals for Veterans Claims have wrongly denied claims from veterans who claim exposure in locations or situations not listed in Young's report. C-123 vets were also denied for years, but won our presumptive exposure ruling in June 2015...despite Young's ceaseless efforts against us.

The GAO reported it plainly: VA seized on Young's incomplete report to refuse medical care and other benefits to veterans claiming Agent Orange cancers, ALS, diabetes, heart disease and other ailments. And Young's report, along with lots of other material gathered by VA, was fatally flawed.

At the Veterans Benefits Administration "Agent Orange Desk" run by Mr. James Sampsel, (who himself officially stated that veterans' Agent Orange disabilities is only "hype and hysteria.") VA had its boiler-plate denial ready to shoot down each and every claim of Agent Orange exposure outside Vietnam, It is important to grasp the great reliance placed by VA on Young's work, and the equal fact that Young has consistently argued against the various foundations for veterans' Agent Orange claims. His 2006 report on Agent Orange sites is but one example of VA's obstruction that led to the GAO report.

Even if discouraged vets opted to appeal Sampsel's use of the Young report to oppose claims, the Board of Appeals for Veterans Claims (BVA) also relied on Young to prevent exposure claims. For example, read this November 2014 BVA denial:

"In fact, Dr. Young's report, which provides the most complete data available on this subject, expressly found that there was there were no documents or records to validate the use of Agent Orange in Okinawa. In this case, the Board finds the exhaustive searches and related findings conducted by the various agencies/entities outlined above, to be far more probative than the Veteran's baseless assertions that he was exposed to Agent Orange/herbicides in Okinawa. Notably, the Veteran has not submitted any medical reports/literature or other evidence to support his claim of exposure, or that otherwise contradict the above findings."

And this:

"Upon review of the Alvin L. Young Collection on Agent Orange, which is part of the National Agricultural Library, the Department of Agriculture was unable to find any reference to the military use of any herbicidal agents, including Agents Orange and Blue, at Fort Jackson during the moving party's period of service. The motion for reversal or revision of the May 3, 2011 Board decision finding that the moving party was not entitled to service connection for diabetes mellitus, type 2, claimed as due to exposure to herbicides, is denied." 

Young's "expertise" on the Agent Orange topic was frequently cited in BVA denials:

"The RO associated with the record a February 2014 report entitled "Investigation into the Environmental Fate of TCDD/Dioxin" that listed Dr. Alvin L. Young as the primary author (the "February 2014 Report"). According to the attached biography, Dr. Young completed his PhD in herbicide physiology and environmental toxicology in 1968, and since then, has amassed more than 300 publications in the scientific literature, including five books on issues related to Agent Orange and/or dioxin. "

But neither the regional office claims adjudicators, nor the BVA, or even the US Court of Appeals for Veterans Claims bother to report the full story about Young, his 2006 report, or relationship to Sampsel. The Young-VA-Agent Orange story includes many revealing points:

1. Young's work supports VA positions disputing Agent Orange exposure and harmful effects
2. Young famously wrote that Agent-Orange-exposed vets were"trash-haulers, freeloaders looking for a tax-free dollar from a sympathetic congressman. I have no respect."
3. Even Young agrees his 2006 report was inadequate, however he didn't do this until he sought yet another VA contract to update it. In other words, his report was okay unless he could make more money
4. As for money, Young agreed he's made "millions" writing reports for the VA and DOD. He also got a $600,000 no-bid-sole source contract mostly directed against C-123 veterans' claims
5. Even while under VA contract at $26,000/month, Young wrongly insisted he wasn't representing VA when he appeared before the National Academy of Medicine to oppose C-123 claims while also failing to reveal his contract and close coordination with VA for input to the Academy. Fortunately, the Academy found that his work, and other from VA and DOD, has been found to be incomplete and also it wrongly minimized veterans' harmful AO exposure risks

My advice to every vet whose claim was denied citing Young's report: appeal based on the now-established fact that the 2006 Young report has been found flawed.

official photo from AFPMB newsletter

Back to the GAO report itself. One key finding was that DOD, sponsor of Young's 2006 report, agreed that the report was flawed but couldn't identify any process to improve it. I'm reminded of my frequent requests to both DOD and VA to help add C-123 spray aircraft to the list, but each agency refused. DOD said it was VA's duty, VA said they simply used what DOD provided and couldn't change anything. My letters to the Armed Forces Pest Management Board, where Young has lectured, were met with refusals to get involved. Interestingly, even though Young has (or had) contracts with the AFPMB as recently as 2017, nothing about him is found in AFPMB files. Guess they don't read their own official newsletter–––––––––––––––––––––––––––––––––>

My 2013 letters to LtGen Judith Fedder, DCS/Logistics, Installations & Mission Support, were similarly rebuffed. She answered,

Very disappointing. Especially so, reading in the November 2018 GAO report that DOD finally has agreed.

Below: The GAO report's six key conclusions:

The Secretary of Defense should ensure that the Under Secretary of 

Defense for Acquisition and Sustainment assigns responsibility for 

ensuring that DOD’s list of locations where Agent Orange or its 

components were tested and stored is as complete and accurate as 

available records allow. (Recommendation 1) 

The Secretary of Defense should ensure that the Under Secretary of
 Defense for Acquisition and Sustainment develops a process for
updating the revised list as new information becomes available.
(Recommendation 2)  

The Secretary of Defense, in collaboration with the Secretary of Veterans 

Affairs, should develop clear and transparent criteria for what constitutes 

a location that should be included on the list of testing and storage 

locations. (Recommendation 3) 

The Secretary of Veterans Affairs, in collaboration with the Secretary of 

Defense, should develop clear and transparent criteria for what 

constitutes a location that should be included on the list of testing and 

storage locations. (Recommendation 4)

The Secretary of Defense, in collaboration with the Secretary of Veterans 

Affairs, should develop a formal process for coordinating on how best to 

communicate information to veterans and the public regarding where 

Agent Orange was known to have been present outside of Vietnam. 

(Recommendation 5)

The Secretary of Veterans Affairs, in collaboration with the Secretary of 

Defense, should develop a formal process for coordinating on how best to 

communicate information to veterans and the public regarding where 

Agent Orange was known to have been present outside of Vietnam. 

(Recommendation 6)

LtCol Al Young earned Legion of Merit in 1984, helping VA block veterans' Agent Orange disability claims

In the 1983-84 time frame, VA firmly opposed all veterans' Agent Orange disability claims, insisting the only possible ailment was chloracne. Dr. Al Young was on loan to VA from the Air Force where he'd spent years defending and promoting the infamous herbicide. At VA he labored mightily to continue its defense, but it was an uphill struggle because science and Congress sided with the vets. Still...Dr. Young gets fair credit for blocking veterans as long as they were.

Let's be clear...earning one of the military's most senior decorations shows how faithful and successful Dr. Young (then a lieutenant colonel) was in fulfilling his duties. It was his sduty at VA, not the faithfulness with which he performed his duty, that has a stigma.  Young was assigned (81-83)  to head up VHA's Agent Orange Projects Office.

It may hard to credit Dr. Young with personally obstructing the claims of tens of thousands of sick Vietnam veterans...perhaps full credit doesn't fall on him, but his inventiveness, contemporary comments and writings on Agent Orange are quite suggestive.

I find it impossible to accept that "Dr. Orange" would have earned his Legion of Merit for advancing veterans' claims of illnesses due to Agent Orange exposure. He, and the VA through his leadership were suggesting sick vets were mental cases or trying to exploit pensions, or merely suffering the results of aging and poor health choices. Anything but Agent Orange! Young suggested that at least "a few" sought "public recognition for their sacrifices in Vietnam" and "financial compensation during economically depressed times."

Dr. Young, who was considered the government's ranking expert on Agent Orange, said the VA had not found any adverse health effects "clearly related" to dioxin exposure among 85,000 veterans. He was not one to be swayed by statistics suggesting otherwise, not even in recent years. He seems to never waive from his mantra about Agent Orange issues arising solely because of social, legal or political reasons, not science and medicine. At the time, VA savored such words as reinforcement to their wall against exposure claims. Young's message spread far and wide, thanks to events such as his Nightline interview, Air Force book and point-man influence throughout the VA.

I find it more likely that VA so appreciated Dr. Young's years successfully spent opposing our claims that the Legion of Merit was his proper due. At most, as he told the New York Times, "We just don't know," and the issue is only a "controversy." Thus his opposition to AO disability claims then, and ever since. Another quote from Young fits well here: "I was wrong." (as he said following Harvard's disproving Young's critical hypothesis that dioxin quickly degrades in soil.)

Back in those years he spent at VA, a staff member of the Senate Veterans' Affairs Committee derided Dr. Young as "a glorified weed-killer" who is "not qualified to discuss the health effects of exposure to Agent Orange."

So congratulations are due for his demonstrably successful years of hard work in service to the USAF and the VA. It took an act of Congress in the form of the 1991 Agent Orange Law to overturn VA's obstruction of vets' claims. LtCol Young's qualification for the Legion of Merit..." senior leadership/command positions or other senior positions of significant responsibility" is obvious, but it grates to consider he earned it by working against Vietnam veterans' claims.

From the Agent Orange Review Feb 1985 (ironic, right?)

• Here's a contemporary article: what role did Dr. Young and his position on Agent Orange have on the type of systemic anti-veteran VBA rules overturned by the US District Court? Why did 31,000 vets have to suffer, finding relief not at the VA but in the courtroom?

VBA claims expert offers gracious apology for dismissive remarks about Agent Orange as "all hype and hysteria."

ACDC Minutes, June 20-21, 2017 

From the VA Advisory Committee on Disability Compensation:

"Chairman Martin reminded attendees that any opinions expressed at the meeting were solely those of the individuals providing them, and did not necessarily reflect the position of ACDC, VA, or the federal government. He read a letter from Jim Sampsel, who briefed the Committee at its March meeting on Agent Orange-related issues, and whose remarks were published in the media. Mr. Sampsel expressed regret over raising the issue of hypertension and recognized the debate on related legal, scientific, and factual issues. He apologized for any negative effects his presentation may have had on the Committee or its mission. Several members praised Mr. Sampsel for his long-time dedication to Veterans’ issues. The Chairman said the Committee welcomed frank and open discussion."

My Public Comments to the Committee:

"Wes Carter spoke on behalf of VVA, the C-123 Veterans Association, and the United Veterans of Colorado. He objected to Mr. Sampsel’s presentation on Agent Orange at ACDC’s March meeting, which he felt had dismissed legitimate concerns over Agent Orange exposure as hype and hysteria. The presentation failed to mention that several institutions, including the Centers for Disease Control and Prevention (CDC), had concluded that Agent Orange exposure was harmful. The CDC had informed VA that someone (having flown former Agent Orange C-123s) exposed to Agent Orange was 200 times more likely to have cancer.** see correction  
Mr. Carter also objected to being mentioned and having his medical situation discussed in Mr. Sampsel’s presentation. Mr. Sampsel had noted Mr. Carter’s 100 percent disability rating, and commented that he guessed that was not enough. Mr. Carter responded that it should not be enough* and that he deserved acknowledgment that his cancer was due to Agent Orange exposure. 
Mr. Carter was disturbed that Mr. Sampsel validated the claims of a consultant VA had paid $600,000 to oppose him at an Institute of Medicine hearing. This consultant had previously referred to Mr. Carter and similarly situated Veterans as trash haulers and freeloaders, and had taken a contemporary photograph of a C-123 airplane and passed it off as a 1971 picture which he represented as evidence for why VA should keep its hospital doors locked to C-123 Veterans. 
Mr. Carter added that a group of Veterans’ organizations had written a letter protesting VA’s reliance on the consultant, and that ProPublica and Stars and Stripes had written articles criticizing Mr. Sampsel’s conclusions. 
Mr. Goldsmith asked if statements found to be untrue should be stricken from the record. 
Dr. Vvedenskaya said that ACDC’s meetings were open to the public and that any comments made became part of the public record.  Dr. Jones argued that it was contrary to ACDC’s charter to refer to individual Veterans by name at Committee meetings; if a presenter violated that policy, the Committee should make it clear that such remarks were inappropriate. Dr. Granger agreed that personal health information was private and should not be shared in a public forum without the individual’s consent. Chairman Martin thanked Mr. Carter for his comments and his service."

My correction to the ACDC minutes:

1.* I never have had or expressed objection to my VA 100% disability rating being "enough," but only to Mr. Samplel making that sarcastic suggestion to his colleague.
2. CDC/ATSDR reported to VA and the IOM that C-123 veterans face a 200-fold greater risk of cancers. The minutes incorrectly state that CDC reached that conclusion about all Agent Orange veteran exposures.

Short Video by ProPublica: C-123 Agent Orange Veterans' Quest For VA Benefits vs. Dr. Al Young

 

ProPublica and The Virginia Pilot produced a short video on YouTube covering Dr. Al Young and the C-123 veterans' problems with him, the VA and Agent Orange. A follow-on to their excellent in-depth report on the same subject.

• note: related 2014 Vietnam Veterans of America radio interview
• here is a shorter recording, just the IOM opening statements by Maj. Wes Carter and Dr. Al Young
• note: Full recording of Dr. Al Young and others, June 2014 public hearing held by the Institute of Medicine C-123 Agent Orange committee, Washington DC
• statement by Professor Philip Kahn (Rutgers University) objecting at IOM hearing to VA foot-dragging
• note: brief summary of some of disappointments veterans had over the decades with Dr. Young
• note: C-123 Veterans Association concerns re: Dr. Al Young & VA, submitted to VA 2014