Since Summer 2022, there has been significant attention given to airmen trying to get a FAA medical certificate with VA disability benefits. As we have written about many times in various forums, the FAA initiated a “special project” whereby the agency started to contact airmen who had not previously reported their receipt of VA disability benefits on previous applications for airman medical certification, Form 8500-8. Specifically, question 18y. on FAA Form 8500-8, or “MedXPress” asks if in your lifetime you have received “medical disability benefits.” Time and time again, our firm is contacted by veteran airmen who believe that their receipt of benefits from the Department of Veterans Affairs (“VA”) is not a disability benefit, but rather compensation for military service. No matter the rationale, there has been a common misunderstanding by airmen that VA disability benefits do not register as a disability warranting an affirmative response to question 18y.
Contrary to this misconception, the FAA and the VA have consistently held that a history of VA disability benefits, even if the airman is receiving a 0% rating for a condition, warrants a “yes” response to question 18y. and the corresponding underlying condition. For example, if an airman is receiving disability benefits for Posttraumatic Stress Disorder (“PTSD”), the FAA would expect a “yes” response to question 18y. and question 18m., which inquires regarding the applicant’s history of mental health conditions. As of the time of this article, our firm continues to see cases where the FAA is approaching airmen identified by the “special project” as having not appropriately identified a history of receiving VA disability benefits. These airmen continue to receive “reconciliation letters” and “Letters of Investigation.”
But what about airmen attempting to apply for a FAA medical certificate with VA disability benefits who haven’t been identified by the “special project?” Perhaps you are applying for a medical certificate for the first time since receiving VA disability benefits. Are you at risk for being denied your FAA medical application purely because you receive disability benefits? Not at all. Instead, the FAA will always assess your underlying conditions to identify whether your condition(s) are aeromedically significant or progressive to a point wherein they may pose a risk to aviation safety.
The following tips should be considered when applying for a FAA medical certificate with VA disability benefits:
- Always provide complete, accurate, and truthful responses on your application for FAA medical certification. If you are receiving VA disability benefits, you should identify all condition(s) for which you receive benefits, to include conditions for which you receive a 0% rating. Furthermore, all condition(s) for which you receive benefits and for those condition(s) which have been identified as “not service connected” should be identified at the appropriate questions on the application. This means that there may be redundancy in your answers to Form 8500-8. You will need to report the condition(s) for which you receive benefits at question 18y., but also at the appropriate question corresponding to the condition itself. As referenced above, a benefit for PTSD would be identified at questions 18y. and 18m.
- You should always be consistent with your representations to both the FAA and the VA. If you represent a condition to the FAA as though you do not have that condition or have never had the condition but receive a benefit for that condition from the VA, you could be liable for fraudulent representations to one agency or the other. While you may have a condition which has improved over time, your presentation to the FAA relative to your VA disability conditions should always be approached from a standpoint of aeromedical significance, appropriate mitigation of risk to aviation safety, and level of risk for aeromedically significant, recurrent symptoms.
- If you receive VA disability benefits for traumatic brain injury, PTSD or any mental health conditions, and/or obstructive sleep apnea, you are likely going to need to provide the FAA with more information regarding your status with the condition, as well as your history of symptoms and treatment. Each of these conditions have their own protocol which should be carefully evaluated and prepared prior to engaging an Aviation Medical Examiner (“AME”).
- If you are receiving disability benefits for a CACI condition, make sure to have appropriate documentation prepared prior to your engaging an Aviation Medical Examiner.
- If you are receiving benefits for most musculoskeletal conditions, your Aviation Medical Examiner should be able to issue your certificate, if you do not present with any aeromedically significant impairment to your flexibility, strength, range of motion, or if you have aeromedically significant levels of pain. Use of a disqualifying medication for pain will likely result in a deferral by your AME and ultimate denial of your application by the FAA.
- You should know that by appropriately reporting your VA disability benefits, you may be subject to additional request(s) for information from the FAA, even if your AME issues to you a medical certificate. The FAA has such authority to ask for additional information, such as medical records and current evaluations pursuant to 14 C.F.R. § 67.407. As such, you should ensure that your medical history relevant to condition(s) for which you are not receiving VA disability benefits are also appropriately addressed on your FAA medical application.
- Preparation is key to ensuring that your FAA medical certificate is not deferred or denied if you are receiving VA disability benefits. It is always a good idea to consult with an aviation attorney prior to submitting a medical application when receiving VA disability benefits to ensure that your application is consistent, complete, and supports your eligibility for airman medical certification.
If you are applying for a FAA medical certificate with VA disability benefits, you must give specific attention to detail. Failing to appropriately report your medical history could result in a catastrophic outcome, with revocation of all certificates and potential criminal liability. Furthermore, if you are not appropriately prepared in advance of applying for a medical application, you could risk a deferral of your application by the AME.
Consider a consultation with a FAA medical defense attorney at The Ison Law Firm before applying for a FAA medical certificate with VA disability benefits. We are happy to evaluate your case and discuss with you a plan for presenting your case to your AME or the FAA. Aviation law is all we do. Nothing else.
Getting your FAA medical with a history of Adjustment Disorder is not impossible. As with all mental health conditions, the Federal Aviation Administration (“FAA”) will assess whether your history of Adjustment Disorder presents a risk for recurrent symptoms. In other words, the FAA will want to know if they issue you a medical certificate today, will you experience aeromedically significant, mental health conditions tomorrow, next week, next month, next year, or ever? The FAA wants to know that the risk for recurrent symptoms is appropriately mitigated. Airmen who have experienced an Adjustment Disorder can typically present an argument to the FAA that the Adjustment Disorder was situational in nature, and therefore, not inclined to produce a risk for recurrent symptoms. Such an argument that the risk for recurrent symptoms is low or not aeromedically significant in these types of cases depends on the facts of your medical history. However, an Adjustment Disorder is typically easier to get medically certified than other mental health conditions, such as Major Depressive Disorder, Single Episode; Major Depressive Disorder, Recurrent; Generalized Anxiety Disorder; Persistent Depressive Disorders; etc.
The FAA has published protocol for Aviation Medical Examiners (“AME”) which authorizes your AME to issue you a FAA medical certificate at the time of application if you present with a situational mental health condition, such as Adjustment Disorder. Your AME will need to evaluate a detailed, clinical progress note from your treating physician at the time of your FAA medical exam. Largely, the FAA’s Situational Depression Decision Tool looks at whether your symptoms were reasonably related to a stressor or event. Nevertheless, your symptoms must be linked to a type of stressor which would likely cause the average person to experience depressive symptoms. For example, the death of a loved one or the loss of your job, would likely qualify as a reasonable stressor to cause depression for FAA purposes. Furthermore, the FAA expects your symptoms to have resolved within 6 months following the resolution of the stressor. For example, the FAA would expect that your depressive symptoms should have dissipated within the following 6 months after you lost your job. The FAA will also expect that your symptoms must be a single episode, rather than a recurrent event in a series of depressive episodes. Of course, other consideration will be given to any other psychiatric symptoms, such as whether you have ever experienced psychosis or substance use related concerns, etc.
In the event your AME decides to defer your medical application, the FAA’s Office of Aerospace Medicine will send you a letter and likely require that you provide all treatment records, if any, from any treatment you received for your Adjustment Disorder. The FAA will also request that you provide a detailed, clinical progress note from your treating physician identifying the following:
- Summary of the history of your Adjustment Disorder;
- List of current medications, dosages, and side effects, if any;
- Clinical exam findings;
- Results of any testing performed, if any;
- Your current diagnosis;
- A current assessment and plan for treatment, if any;
- Your prognosis.
Upon submission of this data, the FAA will review your history to assess whether you are currently stable and whether your history is aeromedically significant. Again, the FAA’s concern will be whether you are at a risk for recurrent symptoms. Aggravating factors for the FAA tend to be whether you have a history of suicidal ideation or attempts, psychiatric hospitalizations, substance induced symptoms, psychotic episodes, etc.
In some cases, however, your treating physician may feel that you are at risk for recurrent symptoms. Consequently, your treating physician may believe it is clinically indicated for you to utilize an antidepressant medication to treat your Adjustment Disorder. If this is the case, the FAA will want you to complete the SSRI Decision Pathway 2, for consideration of a special issuance authorization while on an antidepressant.
Whether you are done with treatment or you are continuing using a SSRI medication, there are a few things that you can do before submitting your next medical application, following a diagnosis of Adjustment Disorder, which may help your FAA medical application go smoothly:
- Gather all of your treatment records from your treating physician and make sure you know what is stated therein. In our practice, we speak to airmen who review their records from their treating physicians only because the FAA asks for a copy. Many times, airmen are shocked to see that they may have more diagnoses than Adjustment Disorder or there may be facts contained within those records which are problematic from an aeromedical standpoint. As such, it is always prudent to know what is in your medical records.
- Procure a detailed clinical progress note from your treating physician before you go and see your AME. If your diagnosis is Adjustment Disorder, a thorough report from your doctor will go a long way toward giving your AME the necessary tools to issue your certificate without deferring your application to the FAA’s Office of Aerospace Medicine.
- Prepare for a potential deferral to the FAA’s Office of Aerospace Medicine. Even though you may meet criteria to be issued by your AME at the time of exam, it is always prudent to prepare for a potential deferral. If your exam is deferred by your AME, in some cases, it may make sense to proactively supply the detailed clinical progress note and your medical records to the FAA before they send you a letter asking for same. Proactively providing records to the FAA may save you several weeks in processing by the Office of Aerospace Medicine. It is critical that you consult with someone experienced with FAA medical certification processes before submitting records to the FAA, especially when submitting records in a proactive fashion. Keep in mind that you will not have a medical certificate if you are deferred and you must wait for a decision from the FAA before operating as pilot-in-command, second-in-command, or as required crewmember.
- If you are utilizing a SSRI medication to actively treat your Adjustment Disorder, make sure that you are utilizing an antidepressant which is approved for special issuance authorization and that you meet all prerequisites for the SSRI special issuance program.
Why involve a FAA attorney when you are trying to get a FAA medical with a history of Adjustment Disorder? Despite what you may hear from your AME, the medical certification process is more so a legal process than a medical process. Ensuring that your doctor is developing the proper documentation regarding your Adjustment Disorder, as needed, can be a difficult task. To that end, everything that is submitted to the FAA (i.e. records, statements, evaluations, etc.) goes into your airman medical file. This file is what the FAA then utilizes to evaluate whether you are eligible to hold a medical certificate. If you are later denied and wish to appeal that denial, your airman medical file becomes “Exhibit A” before the NTSB or upon reconsideration by the Federal Air Surgeon. So, a FAA attorney can evaluate your records, prepare a plan for best presentation of your case to the AME or FAA, and best argue your medical eligibility to the Federal Air Surgeon, with an eye for potential, future appeal. Furthermore, if your medical documentation is as strong as possible upon initial submission, in doing so, hopefully, you will avoid unnecessary delay. Also, if you have failed to report your Adjustment Disorder on your FAA medical application, a FAA medical attorney can give you counsel on how to rectify your omission.
If you are trying to get your FAA medical with a history of Adjustment Disorder call the FAA attorneys at The Ison Law Firm. We are happy to evaluate your case and discuss with you a plan for presenting your case to your AME or the FAA. Aviation law is all we do. Nothing else.
Are you trying to get your FAA medical following Deep Vein Thrombosis (“DVT”)? A recent history of Deep Vein Thrombosis will require a special issuance authorization by the Federal Aviation Administration (“FAA”) in order for you to be issued an airman medical certificate. A special issuance authorization essentially works as a waiver and is a mechanism by which the Federal Air Surgeon can issue a medical certificate to an applicant who would otherwise not be qualified for airman medical certification. Considering a special issuance authorization is granted to applicants only within the discretion of the Federal Air Surgeon, you must provide medical evidence to establish for the FAA that your DVT is appropriately treated and that the risk for recurrent symptoms and/or sudden incapacitation are sufficiently mitigated for aviation safety.
The protocol for demonstrating sufficient mitigation of risk and eligibility for a special issuance authorization following a history of Deep Vein Thrombosis are detailed within the FAA’s AME Assisted Special Issuance (“AASI”) protocol. Therein, the FAA identifies that your first application for airman medical certification following a recent history of DVT must be cleared by a staff physician at the FAA’s Office of Aerospace Medicine. In other words, your Aviation Medical Examiner (“AME”) can not issue to you an airman medical certificate if you are applying for the first time after experiencing DVT. Upon review by the FAA’s staff physician, for favorable consideration of a special issuance authorization, you will need to provide documentation regarding your history of DVT as well as a current, detailed clinical progress note regarding your treatment, if any. Thereafter your first issuance of a special issuance authorization following DVT, your AME will be authorized to continue issuing to you a medical certificate, not requiring review by the FAA, if the AME is provided with documentation establishing you meet appropriate criteria.
In order to first effectively establish your eligibility for special issuance authorization following a history of DVT, you will need to produce a detailed clinical progress note from your treating physician which identifies the following:
- A discussion regarding history and symptoms;
- A discussion regarding treatment plan, if any;
- A discussion regarding prognosis;
- A discussion regarding any current labs, imaging, or other testing deemed necessary; and,
- A discussion regarding the use of medication, to include the following:
- Identification of all medication(s) used for treatment and/or prevention with comment regarding side effects, if any; and
- Discussion of tolerance of the medication to include the presence or absence of side effects, any bleeding episodes requiring medical attention, and any occurrence/recurrence of deep vein thrombosis or pulmonary embolism.
The FAA will pay careful attention to the following concerns when evaluating your treating physician’s detailed, clinical progress note. The following concerns may warrant the FAA denying your application for airman medical certification:
- If you are using Coumadin (Warfarin) and more than 20% of INR values are <2.0 or >3.0;
- If you have experienced any side effects from medication or bleeding episodes requiring medical attention; or,
- If you have developed emboli, thrombosis, bleeding, or any other cardiac or neurologic conditions previously not diagnosed or reported.
Why involve a FAA attorney when you are trying to get a FAA medical with Deep Vein Thrombosis? Despite what you may hear from your AME, the medical certification process is more so a legal process than a medical process. Ensuring that your doctor is developing the proper documentation regarding your DVT, as needed, can be a difficult task. To that end, everything that is submitted to the FAA (i.e. records, statements, evaluations, etc.) goes into your airman medical file. This file is what the FAA then utilizes to evaluate whether you are eligible to hold a medical certificate. If you are later denied and wish to appeal that denial, your airman medical file becomes “Exhibit A” before the NTSB or upon reconsideration by the Federal Air Surgeon. So, a FAA attorney can evaluate your records, prepare a plan for best presentation of your case to the AME or FAA, and best argue your medical eligibility to the Federal Air Surgeon, with an eye for potential, future appeal. Furthermore, if your medical documentation is as strong as possible upon initial submission, in doing so, hopefully, you will avoid unnecessary delay. Also, if you have failed to report your DVT on your FAA medical application, a FAA medical attorney can give you counsel on how to rectify your omission.
If you are trying to get your FAA medical following a Deep Vein Thrombosis call the FAA attorneys at The Ison Law Firm. We are happy to evaluate your case and discuss with you a plan for presenting your case to your AME or the FAA. Aviation law is all we do. Nothing else.
FAA color vision standards can be quite confusing for airmen trying to get an airman medical certificate. If an airman does not meet the FAA color vision standards, the airman’s medical certificate may not be valid for night flying or operation by color signal control. Having an airman medical certificate restricted to not being valid for night flying or operation by color signal control can impede your ambition to operate as a commercial pilot or may significantly limit the operational freedom of your flying for recreational purposes. Knowing how to navigate the FAA’s maze of color vision standards is critical to avoiding unnecessary restrictions on your FAA medical certificate.
Preparation for avoiding, if possible, a color vision restriction on your FAA medical certificate starts well before your exam with an AME. Specifically, if you find yourself at an exam with an AME and are unaware of the nuance regarding the FAA color vision standards, it may be too late to avoid limitations on your flying abilities.
When you apply for a first-, second-, or third-class medical certificate, your AME is required to examine your color vision. Upon examination by your AME, he or she is required to administer one of a series of color vision instruments. There are certain tests that are unacceptable to the FAA for color vision testing, which include the OPTEC 5000 Vision Tester (color vision portion), “Farnsworth Lantern Flashlight,” “yarn tests,” and AME-administered aviation Signal Light Gun test. If you fail the test that is administered by your AME, you can request to take an alternative test, so long as it is a test which is approved by the FAA. If you have failed all of the tests administered by the AME and have run out of options for testing, your AME will issue you a medical certificate, if you are otherwise qualified, with a limitation stating: “not valid for night flying or by color vision signal control.”
What can you do if you fail the color vision tests in your AME’s office? If you do not meet the FAA color vision standards in your AME’s office, your next step may be to attempt the Operational Color Vision Test (“OCVT”). If you successfully complete the OCVT, the FAA will issue to you a Letter of Evidence, which, in turn will remove the color vision limitation on your airman medical certificate. The specifications of the OCVT vary based upon the class medical certificate which you apply. The nuances based on class certificate are as follows:
OCVT for Third-Class Medical Certificate:
If you are attempting to take the OCVT for a third-class medical certificate, testing will be administered at your local Flight Standards District Office (“FSDO”). You can expect the testing to include:
- Signal Light Test (during the day). In this test, an airman is required to identify aviation red, green, and white via light gun signal, at a specified distance, within a timely manner. Note that if you fail this portion of the OCVT, you will be allowed to retest at night. If you pass the test at night, your medical certificate will require a restriction which reads: “not valid for flight during daylight hours by color signal.”
- Aeronautical Chart Reading. In this test, an airman is required to read and correctly evaluate an aeronautical chart within a timely manner. This test should be approached with caution as the chart being used by the FSDO will include various colors of conventional markings and terrain, typefaces, and font size. It has also been the experience of our firm that the quality of the chart being used varies from FSDO to FSDO.
OCVT for First- and Second-Class Medical Certificates:
If you are attempting to take the OCVT for a first- or second-class medical certificate, you will be expected to complete the same testing required for a third-class medical certificate. In addition to this testing, you will be required to undergo a Medical Flight Test at a Flight Standards District Office (“FSDO”). You can expect a Medical Flight Test to include in-flight testing with evaluation of the following:
- Ability to read and correctly interpret instruments and displays in a timely manner;
- Ability to recognize terrain and obstructions in a timely manner; and,
- Ability to visually identify the location, color, and significance of aeronautical lights (including other aircraft, runway lights, etc.) in a timely manner.
The good news? If you pass the OCVT, you will be granted a Letter of Evidence for third-class privileges only. If you pass the OCVT and medical flight test, you will be issued a Letter of Evidence for all classes of FAA medical certification.
The bad news? You can only take the OCVT once (one time during the day and if you fail, one time at night). If you fail the OCVT during the day, you will not be permitted to upgrade to a first- or second-class medical Letter of Eligibility. If you fail the Medical Flight Test, you will not be permitted to upgrade to a first- or second-class medical Letter of Eligibility. You have one chance to be successful with these tests.
As noted above, it is prudent to consider your color vision well in advance of your visit to the AME. You do not want to be put in the position of finding out you are color vision deficient while you are sitting in your AME’s office. As such, keep the following in mind when it comes to FAA color vision standards (not legal advice, as every case is different):
- Establish a general understanding of your color vision status before you see an AME. If you know or have reason to know you may be color vision deficient, be prepared for your visit with an AME.
- Investigate which AME you plan to visit. You need to know which color vision instrument your AME administers in his or her office. If you know that your color vision may be stronger with one instrument over the other, make sure your AME administers that test.
- Take every opportunity to repeat the color vision instruments offered by your AME, if you fail the first time.
- Be considerate when selecting the FSDO where you perform your OCVT and/or Medical Flight Test. If your FSDO has a reputation for deficient procedures in administering the OCVT and/or Medical Flight Test, consider going to a different FSDO.
- When preparing for the OCVT, find an old sectional chart and have a friend quiz you on your performance before going to the FSDO.
- Practice, practice, and practice some more, with your Certified Flight Instructor or other licensed pilot before completing a Medical Flight Test. There is no reason to show up for your Medical Flight Test with no knowledge of how you will perform in-flight.
- Pay careful attention to any discrepancies with how either an OCVT or Medical Flight Test is administered by the FSDO. If the FSDO does not administer your OCVT or Medical Flight Test within appropriate, published procedures, you may be able to request that the Office of Aerospace Medicine authorize retesting of either the OCVT or Medical Flight Test (despite the one time per test rule).
Preparation of your application for airman medical certification by an aviation law firm, such as The Ison Law Firm, can help prevent the dreaded limitations which come along with color vision issues. If you know or have reason to know of a potential color deficiency, there is reason to strategize on the best path forward for ensuring that you can effectively and legitimately avoid the need for a night flying or color signal restriction. In the alternative, if you already have such a restriction, consultation with a FAA medical defense attorney can determine if you have a path toward having the restriction removed.
If you are concerned about obtaining your FAA medical certificate free of limitation due to the FAA color vision standards, call the FAA attorneys at The Ison Law Firm. We are happy to evaluate your case and discuss with you a plan for presenting your case to your AME or the FAA. Aviation law is all we do. Nothing else.
There are a lot of questions these days about reconciling VA disability benefits on FAA medical applications. If you have failed to identify your receipt of disability benefits from the Department of Veterans Affairs (“VA”) on your application(s) for FAA medical certification, Form 8500-8, how should you fix this error? There have been many theories swirling around the aviation community as to how to best rectify your errors on your application(s). Should you just submit a new medical application, Form 8500-8, and identify your complete medical history? Should you take specific action to amend your application(s) to correct your error(s)? Our firm has historically instructed airmen to take efforts to amend and correct any incorrect answers on his/her application(s) for airman medical certification.
Within the past few months, the FAA has evolved to handling cases wherein an airman has been discovered to have not appropriately reported his or her receipt of VA disability benefits on his or her application(s) for airman medical certification, by offering “reconciliation” or “amnesty.” The FAA has identified airmen “meeting certain criteria” who have not appropriately reported receipt of VA disability benefits and have offered to those airmen an opportunity to submit a new medical application, by a certain date, wherein the airmen shall report, in full, his or her receipt of VA disability benefits. In doing so, the FAA is reconciling any omission(s) made by the airman and seemingly forgoing enforcement action against those airmen. It should be noted that airmen who are offered “reconciliation” are still receiving deferrals by their Aviation Medical Examiners, automatically, upon their application for a new medical certificate. Therefore, it is important that airmen undertake efforts to prepare for establishing their eligibility for airman medical certification as quickly as possible upon receipt of a letter from the FAA.
It is critical to note, however, that the FAA’s “amnesty” or “reconciliation” program does not appear to be a blanket instruction or call to action by the FAA for airmen to rectify their omission(s) by submitting a new medical application by a certain date. The concern at our firm is that the phrase “airmen meeting certain criteria” is not a blanket acceptance of all airmen into a realm of amnesty. Instead, within the past few months, the FAA has sent correspondence to those airmen seemingly meeting criteria for “amnesty,” correspondence, inviting these airmen to apply for a new medical certificate and to correct his or her applications(s) by a certain date provided in the letter. If you are not an airman whom the FAA believes “meets certain criteria,” submitting a new medical application, without correcting your previous medical application(s), could be used as an admission against you in an enforcement action.
A recent case before the National Transportation Safety Board (“NTSB”) regarding this very issue, Administrator v. Johns, EA-5949 (2023), suggests that airmen can amend their applications for airman medical certification. In doing so, the airmen should demonstrate their desire or intent to amend their previous application(s) for airman medical certification. This should be done before the FAA contacts you. It is our position at our firm that airmen who have not appropriately reported their history on their application(s) for airman medical certification and have not received correspondence from the FAA, are better protected by taking efforts to amend their previous application(s). The concern, however, with submitting a new medical application, providing the appropriate responses on the application, and hoping that doing so will correct your error(s) on previous application(s), is not consistent with the NTSB’s findings in Administrator v. Johns, and further, it is not consistent with the FAA’s previous acceptance of such amendments.
Ultimately, if you have received a letter from the FAA asking for you to “reconcile” your receipt of VA disability benefits on your application(s) for airman medical certification, you should consult with an aviation attorney and take advantage of any reconciliation opportunities being offered to you. If you have not received a letter from the FAA and you have not appropriately reported your medical history to the FAA, you should, instead, make an effort to amend your application(s) for airman medical certification.
Reconciling VA disability benefits on FAA medical applications should be done via amendment, in cases where you have not been contacted by the FAA. If you have been contacted by the FAA and given an opportunity to reconcile your omission(s), you should begin gathering the appropriate documentation to establish your eligibility to hold an airman medical certificate, as your file will have been flagged and your AME will not be able to issue you a medical certificate upon submitting your new application.