Once they identify a veteran-airman who is in both systems, the FAA looks to the pilot’s previous medical certificate applications to verify whether they have accurately reported the receipt of VA disability benefits and any related medical conditions on the application.
If the FAA’s investigation reveals a discrepancy, then the course of action is uncertain. Some veteran-airmen have received letters of correction, others have been investigated for intentional falsification, and yet others have been afforded the opportunity to reconcile their medical files.
Many veteran-airmen that find themselves in one of these scenarios have called AOPA’s Pilot Protection Services (PPS), asking how the FAA could get their confidential medical disability records from the VA. After all, isn’t this protected information?
At the outset, it is noteworthy this operation apparently began with the Department of Veteran’s Affairs. A recent article from the Washington Post alluded to the fact that it was the VA’s investigators who discovered the inconsistencies by cross-checking federal databases, not the FAA.
Why is this noteworthy? First, the VA has a duty to assist claimants (those requesting VA disability benefits) under 38 U.S.C. § 5103A and this activity seems to conflict with that duty. More importantly, Congress has mandated that records and documents relating to VA disability claims be confidential. 38 U.S.C. § 5701(a) states “all files, records, reports, and other papers and documents pertaining to any claim under any of the laws administered by the Secretary and the names and addresses of present or former members of the Armed Forces, and their dependents, in the possession of the Department shall be confidential and privileged, and no disclosure thereof shall be made except as provided in this section.”
The Secretary shall make disclosure of such files, records, reports, and other papers and documents as are described in subsection (a) of this section as follows:
(1) To a claimant or duly authorized agent or representative of a claimant as to matters concerning the claimant alone when, in the judgment of the Secretary, such disclosure would not be injurious to the physical or mental health of the claimant and to an independent medical expert or experts for an advisory opinion pursuant to section 5109 of this title.
(6) In connection with any proceeding for the collection of an amount owed to the United States by virtue of a person's participation in any benefit program administered by the Secretary when in the judgment of the Secretary such disclosure is deemed necessary and proper.
To our knowledge, no one has challenged this in court so we cannot be certain, but it’s plausible that the VA violated this duty of confidentiality if they brought the discrepancy they discovered to the attention of the FAA. While we cannot be sure, if this operation started with the VA, it is not unreasonable to infer that the VA brought it to the attention of the FAA. If this inference is correct, it is concerning given Congress’ mandate in 38 U.S.C. § 5701(a).
However, if the FAA requested the information from the VA, there’s an exception that allows for this. 38 U.S.C. § 5701(b)(3) stated above. The FAA certainly fits within this exception as an “other agency.” Importantly, this does not appear to give the VA the ability to provide this information to the FAA on its own accord.
Another plausible course of action is that the VA simply informed the FAA in broad general terms about the discrepancy they found without disclosing confidential information. Then the FAA requested the confidential information pursuant to 38 U.S.C. § 5701(b)(3). However, even if true, it again seems contradictory to the VA’s duty to assist under 38 U.S.C. § 5103A.
Due to the secretive nature of this investigation, we still do not know exactly what information the VA shares with the FAA. It may be that the VA shares a veteran-airman’s disability award letter with underlying medical conditions listed on it. However, it could be much broader—perhaps the VA shares the veteran-airman’s entire medical disability file with all related medical documents.
Regardless of what information the FAA obtains from the VA, we can be reasonably certain that the FAA obtains enough information to identify that a veteran-airman is receiving VA disability benefits and the medical conditions for which they are receiving VA disability benefits. We can infer this from the information we’ve seen on Letters of Investigation (LOIs) and other correspondence airmen have received from the FAA. In these LOIs, the FAA will specifically list the medical conditions for which the veteran-airman are receiving VA disability that they have not previously disclosed. This implies that the information the FAA receives includes that the veteran-airmen is receiving VA disability compensation and the conditions that compensation is for.
We further can reasonably infer that the FAA is able to see the percentages associated with the individual conditions a veteran-airmen is receiving. In a recent change to FAA Order 2150.3C, the FAA revealed a significance behind a disability rating of 70% or above. For reasons known only to the FAA, a disability rating of 70% seems to be the magical percentage that renders a potential nondisclosure more severe.
With all this in mind, it is vitally important that affected veteran-airmen reach out to an aviation law attorney for advice at the earliest opportunity. Every case is unique and warrants carefully crafted advice on how to respond, if at all. Affected veteran-airmen with AOPA’s Pilot Protection Services should call us at 1-800-USA-AOPA.