All hope is not lost

In a recent string of such cases, the FAA has made a point of pursuing military veterans who may have failed to report the receipt of disability benefits from the Department of Veterans Affairs (VA) on question 18.y. of their FAA medical certificate application (i.e., MedXPress). Unverified reports indicate several thousand veterans who have held an airman medical certificate may be involved.

In one such case, the NTSB, which has jurisdiction over appeals of FAA certificate actions against airmen, recently affirmed the revocation of all pilot and medical certificates of an airman who was found to have falsified his medical application for failure to report the receipt of VA disability benefits. Underlying the receipt of VA disability benefits was a history of obstructive sleep apnea, which arguably should have been reported under question 18.x. on the medical certificate application.

Although the case was resolved by the NTSB in April 2023, the action began back in 2018 when the FAA alleged the airman, a 20-year U.S. Air Force veteran, failed to make accurate reports on 11 medical applications over the course of 10 years. According to the testimony of a special agent with the VA Office of Inspector General (OIG), the discrepancies were discovered because of a joint investigation between the VA and the Department of Transportation, which the NTSB noted was “aimed at identifying veterans who were active pilots and who were also receiving service-connected disability benefits.”

Ultimately, the NTSB found the airman intentionally falsified his medical application even though he testified that he did not realize his VA benefits were considered medical disability benefits. Rather, he believed the benefits were compensation for his military service and a means of ensuring future care would be received at VA medical facilities. Additionally, the airman stated he believed that question 18.y., which directs an applicant to report the receipt of “[m]edical disability benefits,” referred only to disability benefits from the Social Security Administration. These are all common misconceptions we frequently hear from veterans. Unfortunately, the administrative law judge (ALJ), and later the full NTSB, found the airman’s testimony was not credible in part because his testimony was allegedly inconsistent and evasive.

Further, the airman testified that once he became aware of the potential discrepancy, he took immediate action to correct the issue by reporting the receipt of VA benefits, among other things, to the FAA Office of Aerospace Medical Certification Division (AMCD). However, the ALJ and NTSB rejected this argument because the airman reported the discrepancy “well after” being notified of the issue by the VA OIG special agent and because his submission to AMCD “never mentioned an intention to ‘amend’ the applications.”

So, what does this case tell us? In addition to illustrating the importance of carefully and completely answering the questions on the medical certificate application, this case provides us with some insight for attempting to remedy an inadvertently omitted condition. Although you will not find any guidance in any order, advisory circular, or other publication from the FAA, there may be a way for an airman to request that previous medical applications be amended by providing the FAA with a specific request to amend previous applications together with supporting documentation. At the hearing in this matter, the FAA’s expert in the medical certification process testified that the FAA may accept an amendment to a medical certificate application based on several factors: the amount of time that has lapsed from the time of the application until the time of the disclosure; whether there is a pattern of falsification of past medical applications; the egregiousness of the falsification; and the class of the applicant’s airman certificate (first-class certificate holders are held to a higher standard than second or third-class certificate holders).

Accordingly, if you realize you’ve inadvertently failed to disclose a reportable condition on your medical application, all hope is not lost—you may be able to correct your previous medical certificate(s) with a carefully tailored request to amend them along with supporting information. If that is not an option, it may be possible to take other mitigating steps. Regardless of your situation, you should not delay in acting as time may be of the essence. We strongly recommend reaching out to an experienced aviation attorney as soon as possible as there is no one-size-fits-all approach, and each case varies considerably.

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