the letters we have reviewed for airmen start the same: “Based on information we have received from the Veterans we are investigating whether you made a fraudulent or intentionally false statement(s) on your application(s) for FAA medical certification…” The letters then go on to specifically identify the various conditions for which the airman is alleged to be receiving benefits from the U.S. Department of Veteran’s Affairs (hereinafter “VA”). As required by the Pilot’s Bill of Rights, the FAA then provides the standard opportunity for the airman to provide a response within 10 days of receiving the letter. Another item which has caused significant confusion for airmen is that the letter also provides an opportunity for the airman to resolve the investigation through the FAA’s Amended Prompt Settlement Policy (hereinafter “PSP”).
This article will provide the following: 1) a better understanding of the FAA’s most recent outbreak of investigations into airmen receiving VA disability benefits; 2) a breakdown of common misconceptions that airmen seem to have with respect to receiving VA disability benefits and their underlying, associated medical conditions; 3) a general understanding of the FAA’s position on “intentional falsification,” specifically as it relates to question 18y. on the application for airman medical certification; 4) a discussion on what you should do if you have received a Letter of Investigation (hereinafter “LOI”) from the FAA relative to your VA disability benefits; and 5) advice on what you should do immediately if you have not received an LOI, but have not reported your receipt of VA disability benefits on your application for airman medical certification, Form 8500-8.
Understanding the FAA’s Investigation
In years past, the investigation of airmen who failed to identify their VA disability benefits on an application for airman medical certification seemed to primarily be spearheaded by the U.S. Department of Transportation’s Office of Inspector General in a criminal investigation identified as “Operation Safe Pilot.”1 While investigations conducted pursuant to “Operation Safe Pilot” did yield criminal action against select airmen, there were also many cases where airmen were not pursued with criminal liability. Instead, these airmen were the focus of administrative action by the FAA. Specifically, airmen who were found to have provided “intentionally false” responses to question 18y. on the application for airman medical certification (which asks “[in your lifetime have you ever received] medical disability benefits”) received Emergency Orders of Revocation of both their Part 61 airman certificates and Part 67 airman medical certificates.
The LOIs which have been going out to airmen in recent months may very well be an offshoot of “Operation Safe Pilot”; however, there is one notable element to the current rash of investigations. The letters which airmen started receiving in summer 2022 have identified the investigation as a part of an “AAM special project.” AAM is the FAA’s abbreviation for “Office of Aerospace Medicine.” Furthermore, every letter which we have seen at our firm has been signed by Dr. Harriet Lester, a Senior Regional Flight Surgeon. The takeaway here is that the FAA’s investigation of airmen receiving VA disability benefits appears as though it is being pursued as a “project.” Such identifiers give our firm concern that pursuit of airmen receiving VA disability benefits will go beyond a few isolated airmen.
Within the LOIs, the FAA has provided airmen with the opportunity to resolve the investigation with the PSP. This is an area of great confusion for airmen who have received this LOI. Essentially, the PSP is an opportunity for the airman to acknowledge that he or she violated the regulation and accept punishment (revocation of all certificates) without further investigation by the FAA. The only incentive to the airman of accepting the PSP is that it offers a reduced reapplication period following revocation of the airman’s certificates. If the airman accepts the PSP, the FAA stops their investigation and deems the airman to have falsified his/her application. Whereas, if the airman does not accept the PSP, the FAA completes their investigation and gives the airman an opportunity to pursue due process through an appeal to the National Transportation Safety Board (hereinafter “NTSB”). For more information on the PSP, read the insightful article which was authored by AOPA’s Jared Allen entitled: “For The Record: Deal or No Deal? The FAA’s New Settlement Policy.”2
It is also noteworthy that the FAA and VA seem to have a level of cooperation and record sharing throughout these investigations, as the LOIs suggest specific conditions for which the airmen are alleged to be receiving benefits.
The bottom line for understanding the FAA’s current level of investigation in these matters is to know that falsification of medical applications relative to VA disability benefits appears to be a current focus for the FAA. While we have primarily seen these investigations to be focused on airmen receiving benefits for mental health conditions, obstructive sleep apnea, and traumatic injury, we believe that no airman who has failed to report the receipt of VA disability benefits to the FAA, no matter the condition(s), should rest easy until appropriate remedies are undertaken.
Breaking Down Common Misconceptions
Many airmen do not think of their VA disability benefits as triggering a “yes” response to question 18y. on the FAA’s medical application. The rationale often employed for this misunderstanding is that some airmen believe the benefits are merely compensation for their service to this country and not for a “medical disability.” The FAA’s position, however, is that VA disability benefits do trigger a “yes” response to question 18y. Furthermore, airmen should also identify the underlying condition(s) for which the airmen receiving benefits on all corresponding questions within question 18 on the medical application. For example, if an airman is receiving benefits for post-traumatic s (hereinafter “PTSD”), the airman should identify a “yes” answer to question 18y., as well as a “yes” answer to question 18m. (responding to the FAA’s inquiry regarding any history of mental health conditions). While we could debate whether the questions on the FAA medical application are poorly written and whether the VA does anything to help the airman’s understanding of what needs to be reported regarding disability benefits, these benefits and their corresponding conditions must be reported on FAA Form 8500-8.
There is a fine line, however, between airmen who do not report their benefits because they do not realize they need to, or they misunderstand the questions, and the airmen who purposefully do not identify their benefits and conditions out of fear. There are airmen who believe that if they report their benefits for PTSD, or various medical conditions, they will not be able to hold an airman medical certificate. As a result, airmen who hold this belief try to “fly under the radar” and hope the FAA never catches up with them. This is an unfortunate misconception. Many conditions for which airmen typically receive VA disability benefits will not disqualify an airman from being able to hold any class airman medical certificate (first, second, or third). To that end, there are many airmen who obtain aeromedical certification with the FAA (of any class), despite having a VA disability rating for conditions such as PTSD, obstructive sleep apnea, and traumatic brain injury.
Understanding the FAA’s Position on “Intentional Falsification”
For a more detailed discussion on “intentional falsification” please reference my February 1, 2021, article for AOPA entitled “Correcting Your Medical Application and Avoiding Certificate Revocation.”3 Therein, I noted that a false response, whether innocently or intentionally, to any question on your FAA medical application (Form 8500-8) is justification for the FAA to revoke all your airman certificates (including your pilot certificates, ratings, authorizations, medical certificate, and A&P certificate, if you have one). If the FAA alleges that you have intentionally falsified your medical application and violated §67.403, you do have an opportunity to appeal the FAA’s decision to the NTSB. On appeal to the NTSB, the FAA has the burden of proof to establish at a hearing before an Administrative Law Judge (“ALJ”) that you: 1) made a false statement; 2) in reference to a material fact; and, that 3) your statement was made with knowledge of the falsity. See Hart v. McLucas, 535 F.2d 516 (9th Cir. 1976).
someone’s “knowledge” of a falsity is a difficult standard to achieve, in theory. However, in matters before the NTSB, the FAA can utilize circumstantial evidence to establish an airman’s knowledge of a falsity. In matters involving an airman’s alleged “intentional falsification” of question 18y., the FAA believes that the airman’s receipt of benefits is circumstantial evidence which establishes an airman’s knowledge of a falsity. For example, in one case before the NTSB on a matter of alleged falsification of question 18y., the FAA argued that the airman knew he was receiving medical disability benefits because he applied for medical disability benefits from the VA, he received correspondence from the VA which explained the VA’s decisions on his claims, as well as the basis for those decisions, and he received monthly payments from the VA. The ALJ found in favor of the FAA in this case. The case is currently on appeal to the full NTSB board, however.
Unfortunately, due to a relatively low burden of FAA often can prove an airman’s “knowledge of falsity,” making these difficult cases to defend.
What Should You Do If You Have Received an LOI?
If you have received an LOI from the FAA regarding your failure to report receipt of VA disability benefits on your medical application, contact an aviation attorney immediately. If you need a referral and have AOPA’s Legal Services Plan, they can connect you with aviation any state in the US. It is important to note that a response to the FAA, if any, must be calculated and carefully considered the “knowledge” prong of “intentional falsification,” as discussed above. Anything you say can and will be used against you in a potential action by the FAA and possibly even with respect to criminal liability.
Discuss with your attorney the importance of requesting your airman medical file and “applicant notes” from the FAA, so that you can receive and review your complete FAA file, as well as any internal notes the FAA may have generated. Reviewing this information is critical to mounting an appropriate defense.
You may also consider consulting with a criminal defense attorney if you have received an LOI relative to failing to report your VA disability benefits, as a precautionary measure.
What Should You Do If Have Not Received an LOI?
If you have NOT received an LOI from the FAA regarding your failure to report the receipt of VA disability benefits on your medical application, contact an aviation attorney or AOPA’s Legal Services Plan immediately. It is of the utmost importance that if you have not reported your VA disability benefits on your FAA medical application, as required, to take immediate action to correct any potential errors. I discuss this process in depth in my February 1, 2021, article for AOPA entitled “Correcting Your Medical Application and Avoiding Certificate Revocation.” There may be opportunities to avoid revocation of your airman and medical certificates by amending your previous medical application(s) before receiving an LOI from the FAA. Do not avoid taking proactive steps in this matter, as the FAA will catch up with you sooner or later!
No one wants to see an airman lose his/her flying privileges, or even career, when that airman’s proactive measures could have prevented, or mitigated, the FAA against his or her certificate(s). Fortunately, if you have failed to disclose your VA disability benefits, there is a possibility of preventing an FAA action against you for but timing is everything. Also, remember, before you say or do anything, however, contact your AOPA Panel Attorney and discuss your best options for moving forward.
Anthony G. Ison is an aviation attorney born and raised in Lakeland, Florida, which coincidentally is home to the annual Sun ‘n Fun International Fly-in and Expo. Anthony has been a licensed airman since he was 17 years old and has recently been working on obtaining his rotorcraft endorsement.
Anthony is the founding member of The Ison Law Firm (ThePilotLawyer.com), where he exclusively represents pilots, mechanics, aviation businesses, air traffic controllers, airports, passengers, drone operators and the like before the Federal Aviation Administration, the National Transportation Safety Board, and in a multitude of other settings. A broad portion of Anthony’s practice is devoted to assisting airmen with establishing eligibility for airman medical certification. The firm represents airmen in FAA and NTSB matters nationwide.
Anthony is licensed by and a member of the bar associations of both Florida and Kentucky. Additionally, he is an AOPA Legal Services Panel Attorney. Anthony holds an “of counsel” position with two other aviation law firms, where he contributes his experience and knowledge to fellow aviation attorneys and their clients. Anthony has also contributed to numerous research studies regarding commercial drone laws and aviation .
Popularly known as “The Pilot Lawyer” he is both a pilot and a lawyer, Anthony founded The Ison Law Firm under the belief that the firm would be a blessing to an airman or passenger during their time of need. To this day, Anthony runs the firm with a Christian mindset and has promised to always treat clients and opponents with respect and to pursue their claims or defenses with the utmost diligence.
Outside the practice of law, Anthony is happily married to his wife, Emily, and is a proud father to their three children, Atticus, Eloise, and Beau. Anthony and his family enjoy flying, traveling, spending time with family, and participating in church activities.