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.
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.
Do you have questions about your FAA medical and VA disability reconciliation? The FAA’s Office of Aerospace Medicine has started sending military veterans who are receiving VA disability benefits, letters offering “reconciliation” of potentially false answers to Form 8500-8, application for airman medical certificate. Essentially, these “reconciliation letters” are offering airmen who meet certain, unidentified criteria, an opportunity to correct their application(s) for FAA medical certification, in cases where the airman has not previously reported VA disability benefits and/or related medical conditions. For example, if you are an airman who has not reported your receipt of VA disability benefits at question 18y. on your Form 8500-8, application for airman medical certificate, the FAA may offer you an opportunity to “reconcile” your omissions. In doing so, you may very well be able to avoid revocation of all your certificates, to include your hard-earned airman certificates, for what the FAA considers “intentional falsification.”
Within the FAA medical and VA disability reconciliation letters, our firm is tracking where the FAA is instructing airmen to present to their Aviation Medical Examiner to submit a new medical application by a specified date. Current letters that our firm is seeing states the following:
“As part of this reconciliation process, all First Class Airman Medical Certificate holders must submit a new medical application and schedule an appointment with an Aviation Medical Examiner (“AME”) when their current medical certificate expires or no later than July 31, 2023, whichever is earlier. Second and Third Class Airman Medical Certificate holders must submit a new medical application and schedule an appointment with their AME when their current medical certificate expires or no later than January 31, 2024, whichever is earlier.”
This appears to be excellent news and perhaps the implementation of an amnesty program for VA disability benefit recipients, who have not appropriately reported their receipt of VA disability benefits on their FAA medical application(s). With that being said, however, it is unclear if this reconciliation process will last and which airmen will be eligible for this program. It is important to note that if an airman has not accurately reported a history of receiving VA disability benefits to the FAA, there are also opportunities to amend previous application(s) before the FAA takes action. Requesting an amendment to your FAA medical application(s) to reflect previously undisclosed VA disability benefits and/or medical conditions should always be your first line of defense, if eligible.
It should also be noted that once an airman submits a new application through his or her AME in response to the VA reconciliation process, it is likely that the airman’s application will be deferred to the FAA for further review. What does this mean for the airman? Depending on which medical condition(s) you are reporting on your FAA medical application, your AME may not be able to issue you a new medical certificate. Instead, the FAA will need to review your records, require evaluation, and take other steps to ensure that you can be issued a new medical certificate.
Why involve a FAA attorney with your FAA medical and VA disability reconciliation? Despite what you may hear from other pilots, 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 colitis, 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.
If you have questions about FAA medical and VA disability reconciliation, 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.
Do you have questions regarding your FAA medical and VA disability benefits? A frequent question asked of our firm is whether an applicant for FAA medical certification needs to report his or her receipt of VA disability benefits to the FAA. There seems to be a good deal of confusion, somewhat caused by the Department of Veteran’s Affairs, as to whether disability benefits are reportable. (more…)