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.
On August 30, 2023, the FAA published guidelines for what is being called the FAA ADHD Fast Track. The FAA ADHD Fast Track appears to be an effort by the agency to limit the requirement for neuropsychological testing for some applicants with a history of ADHD and treatment with ADHD medication. The scope of these new guidelines are limited to a small population of applicants who have a history of ADHD or have received treatment with ADHD medication. For those eligible for the FAA ADHD Fast Track, those applicants may be able to avoid a battery of neuropsychological testing in order to establish eligibility for a first-, second-, or third- class airman medical certificate. For those note eligible for the program, the standard process for achieving medical certification with a history of ADHD still applies. The eligibility requirements for the new program will be discussed below and is further discussed on The Pilot Lawyer Podcast.
An applicant who wishes to avoid deferral by his or her Aviation Medical Examiner (“AME”) due to a history of ADHD may be able to take advantage of the FAA ADHD Fast Track if he or she meets certain criteria. More specifically, an AME will only be able to issue a medical certificate under these guidelines if an applicant presents for examination with the following history:
- The applicant has had NO treatment or use of ADHD medication (for any reason) within the past four (4) years;
- The applicant has had NO ADHD symptoms in the past four (4) years;
- The applicant has had NO instability in academic, occupational, or social functioning within the last four (4) years;
- The applicant has had NO other psychiatric condition(s) or diagnosis (current or historical).
In the event the applicant meets these criteria, the AME must also review the following:
- Records in accordance with FAA guidelines;
- FAA ADHD Summary completed by a doctoral level (PhD or PsyD) licensed psychologist or neuropsychologist with training and experience in the evaluation of ADHD; and,
- Clinical summary report from the evaluating psychologist or neuropsychologist.
In the event the AME finds the applicant meets the criteria presented above, the AME reviews the documentation required under the guidelines, and the applicant is found to be otherwise qualified, the AME may issue the applicant a medical certificate. All of the documentation reviewed by the AME will then be forwarded to the FAA, despite issuance of a certificate to the airman, for review by the FAA. In the event the applicant does not meet the criteria above, the AME is required to defer the application to the FAA for further consideration and neuropsychological evaluation.
The individual steps pursuant the FAA ADHD Fast Track guidelines are still a bit involved and will require a good deal of understanding and workup on behalf of the applicant in order to be successful. As such, we will discuss each requirement, below, in turn.
No Treatment or Use of ADHD Medication Within Four (4) Years
This requirement appears fairly straightforward. If an applicant has not used ADHD or undertaken treatment for ADHD within the past four (4) years, the applicant would meet this threshold requirement. Open for interpretation is what the FAA means by “treatment.” As time goes on, it is possible that “talk therapy” or treatments to not include medication could be considered “treatment” for ADHD and thus, disqualifying for the guidelines. Furthermore, even if you do not use your medication consistently, but still have a prescription for an ADHD medication, you will likely be considered to have used ADHD medication within the last four (4) years.
No Symptoms of ADHD Within Four (4) Years
This requirement also appears somewhat straightforward; however, what remains unclear is if this is to include only documented symptoms or also symptoms reported only by the applicant. Furthermore, it remains to be seen how the FAA will handle situations wherein the applicant may report symptoms which have not been documented by his or her physician but cannot remember if the symptoms occurred within or outside four (4) years. Furthermore, the definition of an ADHD symptom could lend itself to some level of subjectivity.
No Academic, Occupational, or Social Instability Within Four (4) Years
Perhaps the most subjective of the requirements is that the applicant must have had no academic, occupational, or social instability within the past four (4) years. At issue is the definition of academic instability, occupational instability, and social instability. What is the threshold that an AME will consider when rendering his or her decision when assessing instability? For example, will the AME consider an applicant’s GPA in school? If so, what will be the threshold GPA for instability? If an applicant received a bad work performance report or moved between a few jobs, will that be considered occupational instability? Social instability, likewise, is open for vast interpretation.
No Other Psychiatric Diagnosis or Conditions (EVER)
In our practice, it is rare to see an individual who only has a diagnosis of ADD or ADHD. Most times, we will see ADHD accompany other diagnoses such as anxiety, depression, Aspergers, Autism, etc. Our recommendation would be for all applicants to carefully review their records to ensure that their treating providers have never diagnosed the applicant with any other psychiatric conditions. Note that this requirement seemingly has a lifetime lookback and is not limited to the past four (4) years. As an example, it an applicant is 30-years old and has had a brief history of ADHD in kindergarten, but later had an episode of depression, the FAA ADHD Fast Track will not be available that applicant.
Assuming an applicant can meet the criteria to be eligible for the FAA ADHD Fast Track, the procedural steps to then avoid deferral appear to be a bit involved. Specifically, the applicant must carefully gather records and undergo evaluation within 90 days of presenting for an exam with the AME. Those procedural steps are discussed in more detail, below.
Records in Accordance with FAA Guidelines
An applicant’s first step in the process should be gathering all medical records. This goes beyond a simple request for medical records to a primary care provider. Instead, the FAA has identified a very specific list of documents which must be procured. Those records are as follows:
- Pharmacy records within the last four (4) years
- Medical records related to the diagnosis and treatment for ADHD;
- Any other evaluations or treatment records related to ADHD or learning issues from any of the following, if applicable: Psychiatrist; Psychologist; Therapist; School counselor; Education specialist/teacher; Speech Therapist; and/or Occupational Therapist;
- Medical records related to any other condition (for a non-ADHD diagnosis) which was treated with ADHD medication(s);
- Driver’s license records from all states where a license has been issued within the past four (4) years, as applicable;
- Academic records: All transcripts through highest grade or degree, Section 504 Plans, and any Individualized Education Programs (IEP); and,
- Personal Statement which describes all items on the FAA ADHD Personal Statement Guideline.
It is worth noting that each and every document provided to the evaluating psychologist, AME, and ultimately, to the FAA, should be carefully scrutinized. An applicant should make sure that there is no information in the records which could otherwise sabotage the airman medical certification process. In that, an applicant should ensure that any complicating medical factors presented in the records do not prohibit medical certification. If there is such a complicating factor, that issue should be addressed, in addition to ADHD, for presentation to the AME.
A special note with respect to the personal statement required by the FAA: be honest. An applicant must ensure that the personal statement is consistent with the applicant’s history and medical records. Failing to provide an honest and accurate statement may very well subject an applicant to enforcement action by the FAA. See 14 C.F.R. § 67.403.
Evaluation by Licensed Psychologist or Neuropsychologist with Training and Experience in the Evaluation of ADHD
Perhaps the only benefit of the FAA ADHD Fast Track is that if an applicant meets the criteria mentioned above, then the applicant will not have to undertake neuropsychological testing with a HIMS-trained neuropsychologist. This means that an applicant might even be able to avoid taking a CogScreen-AE. Nevertheless, even if an applicant meets the criteria for the FAA ADHD Fast Track, then there must still be a mental health evaluation conducted by a licensed psychologist or neuropsychologist with training and experience in the evaluation of ADHD.
First, with respect to the credentials of the evaluator, the FAA does not explicitly require that the licensed psychologist or neuropsychologist be HIMS-trained, as has been the requirement before these guidelines were published. Instead, the FAA notes that the evaluator must be trained and experienced in the evaluation of ADHD. The word “experienced” allows some room for interpretation. Unfortunately, especially in cases where eligibility for certification might appear equivocal, it is possible that the credentials of the evaluating psychologist or neuropsychologist may be a deciding factor. To that end, the FAA appears to strongly suggest that applicants utilize an evaluator with an understanding of aerospace medicine. While this still does not require an evaluation to be conducted by a HIMS provider, it seems obvious that these evaluations would be best suited for HIMS-trained providers in order to avoid pushback from the FAA. Fortunately, however, these evaluations can be conducted virtually, which may open a wider array of evaluators to applicants who may not have qualified practitioners in their community.
It would seem that the mental health evaluation leaves room for potential failure by the applicant. In that, the licensed psychologist or neuropsychologist is required to evaluate the items referenced on the FAA Fast Track – FAA ADHD Evaluation Report Requirements. Following such an evaluation, a detailed clinical report as to the practitioner’s findings must be submitted to both the AME and FAA. It is possible that if such a report is not generated appropriately or equivocates as to any material fact, the applicant could be subjected to deferral or further neuropsychological testing.
Ultimately, while time may be the best test for the FAA’s ADHD Fast Track, it would appear that these guidelines will only be useful to a very small population of applicants. Nevertheless, built into the guidelines appears to be an extent of subjectivity, which could otherwise impede an otherwise qualified applicant from taking advantage of these new processes.
If you are trying to get your FAA medical through the FAA ADHD Fast Track 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.
Have you ever been in a quandary as to whether you are “legal” under the rather ambiguous fitness for duty requirements of 14 C.F.R. § 117.5? If you are unfamiliar with this particular regulation, you will note that the essential rule is that “each flight crewmember must report for any flight duty period rested and prepared to perform his or her assigned duties.” Other than some of the rest requirements found in part 117, the only litmus test for “rested and prepared” under § 117.5 offered by the regulations is whether the crewmember is “too fatigued” to perform his or her duties in a safe manner. (more…)
You’ve landed, taxied to the ramp, and are tying your Cessna 172 down for the night. But who is that guy walking across the ramp toward your plane…oh no, it’s the FAA! When you see the badge clipped to his shirt that says “FAA” in big letters, you’ll probably want to climb into the baggage compartment and hide, but don’t. If you understand the “Ramp Check” process and are properly prepared for an unexpected chat with the inspector, the chances are you will survive. (more…)