As you may recall from my previous article published by AOPA, entitled Airmen Receiving VA Disability Benefits - Legal & Medical Services (PPS) | AOPA, the FAA initiated a “special project,” whereupon the agency began a cooperative effort with the VA to cross reference records for those airmen who were receiving VA disability with their responses on their application(s) for airman medical certification, Form 8500-8 (“medical application”). The goal of which was to discover if airmen receiving VA disability benefits had reported receiving such benefits on their medical application(s). This effort resulted in the FAA sending out Letters of Investigation (“LOI”) to airmen all over the country for allegedly failing to report VA disability benefits. Since AOPA kindly published this article in September of 2022, the FAA seems to have modified their handling of these cases, slightly. The FAA continues to investigate airmen under the VA disability “special project.” In a concerning twist, however, these cases are being handled in a “one-potato-two-potato” fashion or better said in legalese: the handling of these cases has been arbitrary and capricious. The FAA’s inconsistent handling of VA disability/falsification cases, unfortunately, keeps airmen and their certificates in the crosshairs.
This article will provide the following: 1) an update on how the FAA is handling cases where an airman has been alleged to not have appropriately reported his or her VA disability benefits on a medical application(s); 2) an overview of the differences between a Letter of Correction and an Order of Revocation; 3) a discussion on the legal concerns relating to the FAA’s choice of who will and who will not receive a Letter of Correction; 4) a discussion on what you should do if you have received a Letter of Correction from the FAA; and 5) reiterate what you should do immediately if you have not yet received correspondence from the FAA, but have not reported your receipt of VA disability benefits on your medical application(s).
Update on the FAA’s Handling of Unreported VA Disability Benefits
At the time of my September 2022 article on this issue, the FAA’s initial handling of these types of cases appeared to be relatively simple. [1] Essentially, at that time, the FAA would discover that an airman was receiving VA disability benefits and that the airman’s receipt of those benefits had not been identified on question 18y on the airman’s medical application(s). [2] Upon making this discovery, the FAA would issue a Letter of Investigation to the airman. In the May 2022 to September 2022 timeframe, our firm would receive on average two to three calls per business day from an airman who had received a Letter of Investigation relative to their incorrect reporting of VA disability benefits on his or her medical application(s). Many of these cases resulted in the issuance of a Letter of Correction.
In approximately November of 2022, it was the perception at our firm that airmen who had received a Letter of Investigation as a result of the FAA’s “special project” were having their cases disposed via Letters of Correction, nearly in droves. There turned out to be a lot of airmen who had allegedly not reported their VA disability benefits on their medical application(s). Perhaps the FAA realized that they had bitten off more than they could chew in pursuing revocation of all certificates against airmen who had not appropriately reported their VA disability benefits. No matter the cause, there appeared to be a shift from airmen exclusively receiving a Letter of Investigation as the FAA’s initial contact with the airman, to situations where the initial contact the airman received from the FAA was a Letter of Correction. Essentially, in these cases, the FAA didn’t even bother asking the airman about the discrepancy in his or her non-reporting of VA disability benefits via Letter of Investigation, but right out of the chute, decided to give the airman an opportunity to correct the allegedly incorrect medical application(s).
So, what’s the update? How is the FAA doing anything differently than they were when you last read about this problem? Unfortunately, the FAA’s disposition of these cases has become erratic. In practice, where two airmen may have the same or substantially similar VA disability benefits and ratings, one airman may receive a Letter of Correction as an initial contact, whereas the other may receive a Letter of Investigation. More tragically, in recent days, we have seen more cases be referred for legal enforcement generally seeking revocation of all certificates, whereas similar or like cases may been disposed via Letter of Correction. Curiously, and concerningly, we have also seen Letters of Correction be issued and then later rescinded, without explanation or legitimate rationale.
The relevant update is that the Letter of Correction has become a more prevalent disposition for many airmen caught up in the FAA’s “special project.” This is good news for many airmen since my last article. Nevertheless, the Letter of Correction appears to be a fickle instrument of the FAA and airmen should keep their guard for the Office of Aerospace Medicine’s discretionary referral for legal enforcement or even rescission of the Letter of Correction.
What Is a Letter of Correction Versus Order of Revocation?
What is a Letter of Correction and how is it different from an Order of Revocation? In short, a Letter of Correction is an opportunity for the airman to correct his or her medical application(s) to accurately reflect his or her receipt of VA disability benefits and any underlying medical condition(s). In making such a correction, however, the FAA will also ask that the airman provide relevant documentation to establish his or her eligibility to hold an airman medical certificate. For example, if an airman is receiving a 50% disability benefit rating from the VA for Posttraumatic Stress Disorder, a Letter of Correction may ask that an airman correct his or her application(s) and to also provide relevant diagnostic and treatment records, as well as a current evaluation report from a physician. The FAA would then assess that documentation to establish whether the airman meets criteria to hold an airman medical certificate, and then, upon review, issue either a Letter of Eligibility, a special issuance authorization, or perhaps, revoke the airman’s medical certificate due to medical insufficiency.
A Letter of Correction does not constitute a finding of violation and does not independently act as an action against your airman certificate. A Letter of Correction will not be reported to employers under the Pilot Records Improvement Act (“PRIA”) or via the Pilot Records Database (“PRD”). A Letter of Correction can be discovered by a third party, however, via a request under the Freedom of Information Act, for a period of two years from issuance.
Issuing an Order of Revocation is a more drastic approach the FAA can take in these cases. When the FAA issues an Order of Revocation, the FAA generally revokes the airman’s medical certificate and all airman certificates (whether the airman holds a Private Pilot certificate or ATP certificate) for alleged falsification in violation of 14 C.F.R. §67.403. These actions are discussed in more length in my September 2022 article, as well as in many of the other fine publications offered by AOPA.
Ultimately, as should be relatively obvious, a Letter of Correction is the desired outcome in these cases.
Who Gets a Letter of Correction and Who Doesn’t?
In my opinion, if one airman subject to the FAA’s “special project” gets a Letter of Correction, then every airman subject to the FAA’s “special project” should get a Letter of Correction. Are there cases worse than others? Yes. Are there cases where some airmen have a more significant medical history than others? Yes. Have there been cases where airmen with a rating for the same percentage and for the same condition have received different outcomes? Yes. Why? Why would the FAA allow for one airman, receiving a 100% rating disability benefit receive a Letter of Correction, but another with the same rating and condition(s) go to an Emergency Order of Revocation? These are unanswered questions.
Enforcement actions against airmen who have been alleged to falsify a medical application have been going on for many years before the FAA initiated its current “special project.” In litigation before the National Transportation Safety Board (“NTSB”), the FAA’s previous position has always been crystal clear: falsification of one application for airman medical certification warrants revocation of all certificates. See Administrator v. Kennedy, NTSB Order EA-5928 (2022) (noting that revocation is the appropriate sanction even for a single instance of intentional falsification). The point of bringing this up is that the FAA would be on shaky ground if they justified issuance of a Letter of Correction based on how many applications are perceived to have been falsified.
Perhaps the FAA is trying to justify giving an airman a Letter of Correction based on the airman’s condition(s) for which the airman is receiving benefits and the percentage at which the airman is receiving benefits? This would not appear to be the case, as our firm has seen situations where airmen receiving substantially similar benefits for similar or same conditions receive different dispositions. Even still, this would be inconsistent with NTSB case law, which does not consider the status of the condition(s) which were not reported, but rather only that the condition(s) was not reported. The severity of the medical condition would only be a question as to eligibility to hold an airman medical certificate.
The FAA does not appear to have a legitimate, focused rationale for who receives a Letter of Correction and who doesn’t. This is a problem for airmen, but perhaps, also a problem for the FAA. As the cases which go to an Order of Revocation are litigated at the NTSB, a primary focus should be on why the airman was not issued a Letter of Correction – what makes this airman any different from the many airmen who received a Letter of Correction? I propose that there is no difference between these cases and the FAA’s choice of revocation as a sanction is arbitrary and capricious.
What if You Receive a Letter of Correction?
If you receive a Letter of Correction, you need to consult with an aviation attorney. Why do you need an attorney to assist in what appears to be a medical certification question? The FAA has proven themselves to be indecisive when it comes to issuing and maintaining the Letter of Correction. It is critical that your response as to how you correct your previous application(s), as well as how you present your eligibility for continued airman medical certification, is handled delicately. An experienced aviation attorney should ensure that your response(s) to the FAA is complete, accurate, and constructed with an eye toward working with the FAA to resolve your case without the specter of enforcement.
Our firm has also seen airmen experience consequences from an aeromedical perspective for not appropriately reporting their medical history on a medical application(s). In some cases where the airman is not pursued via legal enforcement, the FAA has argued that the airman’s history of incorrect reporting on his or her medical application(s) rises to the level of an “overt act.” We have seen cases where the FAA then finds that the airman’s “overt acts” were possibly the manifestation of a severe “personality disorder” pursuant to 14 C.F.R. §§67.107(a)(1), 67.207(a)(1), and/or 67.307(a)(1). In these cases, the FAA could potentially find that the airman is not eligible to hold a medical certificate, and/or require extensive psychiatric and neuropsychological testing. Of course, there is much to be argued in these situations, as to whether the airman legitimately has an underlying “personality disorder,” whether the airman legitimately committed an “overt act,” and if so, whether that “overt act” was a manifestation of the alleged personality disorder, let alone a personality disorder which is “severe,” as is required by the regulation.
As you can see from the example, above, your eligibility to hold an airman medical certificate can also benefit from review by an experienced aviation attorney. In our opinion, 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 medical conditions, 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. Moreover, if your medical certificate is revoked for a medical insufficiency, and you wish to appeal that denial, your airman medical file becomes “Exhibit A” before the NTSB or upon reconsideration by the Federal Air Surgeon. So, an experienced aviation attorney can evaluate your records, prepare a plan for best presentation of your case to the FAA, and best argue your medical eligibility to the Federal Air Surgeon, with an eye for potential, future appeal.
What Should You Do if You Have Not Received Correspondence From the FAA?
This advice was published in my September 2022 article; however, it is worth repeating: if you have NOT received correspondence from the FAA regarding your alleged failure to report 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, you 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 certificates by amending your previous medical application(s) before receiving a LOI from the FAA. Do not avoid taking proactive steps in this matter, as the FAA will catch up with you.
Conclusion
The good news is that things are looking better for airmen caught up in the FAA’s VA disability “special project” with the FAA’s more prevalent use of Letters of Correction. For those who have received a Letter of Correction, the good news is that you are likely to avoid revocation of all certificates and the focus should be your continued eligibility to hold an airman medical certificate. If you are one of the unfortunate airmen who have received an Order of Revocation, keep in mind that the arbitrary and capriciousness of the FAA’s decision to not give you a Letter of Correction may be a viable defense in your case. If you need to “amend” your previous application(s), do so immediately, as the FAA continues to actively pursue airmen under the “special project.”
[1] This article does not express or identify the FAA’s specific processes, but rather, what has been experienced by our firm in practice, having handled many of these cases.
[2] Question 18y. on FAA Form 8500-8, or application for airman medical certification, asks if an airman in his or her lifetime has ever received medical disability benefits. Contrary to the understanding of some airmen, the FAA is asking for VA disability benefits to be identified in response to this question.
Anthony G. Ison is an aviation attorney born and raised in Lakeland, Florida, which consequently 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.
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.
