Photo: Mark Bennett

 

Differences between FAA medical records and veterans disability ratings jeopardize aviators’ certificates, livelihoods.

 

US helicopter pilots are trying to make sense of a yearslong government examination of airmen medical certifications and military disability benefits that has ensnared veterans in records-falsification accusations, jeopardizing their flying careers.

The FAA’s cross-checking of former military pilots’ medical-­certificate applications with US Veterans Affairs (VA) Department disability-benefit records has raised concerns about exacerbating the current pilot shortage and invading pilots’ privacy while highlighting confusion over disability-related red tape.

Veteran Helicopter Pilots under Scrutiny

Greg Reigel, a partner at Shackelford, Bowen, McKinley & Norton, a law firm based in Dallas, Texas, has been helping pilots respond to the ongoing investigation and says the FAA’s investigative efforts are wide-ranging and likely to grow.

Reigel has heard from pilots throughout the United States who’ve received FAA notices, noting he gets multiple calls a week from aviators who have either been identified by the FAA or otherwise become aware of the issue. He’s “fairly confident” the agency will send a letter asking every pilot holding a medical certificate who is also  receiving VA disability benefits to supplement their medical records with information regarding the disability.

The FAA, responding to industry pleas, in June laid out a path for pilot veterans to reconcile medical records that triggered reviews. But that response, which can include emergency certificate revocations and criminal prosecutions, falls short of the amnesty sought by the aviation industry and offered in past investigations, and can leave pilots ineligible to fly for months or more. Moreover, more pilots are at risk of being investigated.

In a Jun. 15 letter, FAA Deputy Administrator Katie Thomson said several thousand pilots appeared to have questionable medical records. (The FAA said that figure represents “just under 1%—just under 4,800—of the country’s 600,000-plus certified pilots.”) Roughly 2,550 cases had been resolved, she wrote, with some 60 pilots told to “cease flying unless and until” they address disqualifying medical conditions.

Thomson was responding to Aircraft Owners and Pilots Association (AOPA) President Mark Baker’s call for amnesty, similar to requests made in the late 1980s for airmen amending medical certificate applications to report driving-while-intoxicated/under-the-influence (DWI/DUI) convictions and, in 2010, use of antidepressants.

“Airmen need a clear pathway to correct their FAA medical records,” Baker said in a Mar. 30, 2023, letter to the agency.

Illustration: HAI/Paul Smith

HAI is working with AOPA to address the FAA’s actions and answer pilots’ and operators’ concerns about the potential impact of the medical-records scrutiny on their livelihoods and businesses.

“Military veterans are significant contributors to the civil helicopter industry’s effectiveness and success,” says HAI President and CEO James A. Viola, a 24-year US Army aviation veteran.

HAI Director of Flight Operations and Maintenance Zac Noble says the medical-records scrutiny, “whether it’s intended or not, is putting a big fear into the helicopter community.”

Military helicopter pilots spent a great deal of time over the past two decades in combat and support operations in Afghanistan and Iraq. Much of that flying was in conditions, such as at low altitudes, wearing night-vision goggles, and in close contact with the enemy, that contribute to VA disability claims. “A large number of those folks who were engaged in that stuff over the last couple of decades are out there wiggling sticks for our industry right now,” Noble says.

The current probe may indeed involve many helicopter pilots, says Lakeland, Florida–based aviation attorney Anthony Ison. “My perception is that it’s more helicopter pilots [than fixed-wing],” he says. “It seems like I’ve talked to more helicopter pilots over the last several months than I ever have before just because of this issue.”

Question 18y

The scrutiny hinges on how a pilot answers Question 18y of the FAA Form 8500-8, “Application for Airman Medical Certificate.” Question 18 concerns a pilot’s medical history and lists 23 conditions, with yes or no checkboxes next to each to indicate whether the applicant has ever had the condition. The condition for 18y is “medical disability benefits.”

If an applicant checks no for 18y but is found to have received any disability benefit, several lawyers explain, that person is vulnerable to an FAA charge of falsifying a record. Under 18 USC 1001, providing false statements to any branch or agency of the federal government is against the law.

And proving falsification there is easy, lawyers add. “That’s really low-hanging fruit for the FAA,” Reigel says. The combination of an 18y checkbox marked no and disability receipts or direct-deposit payments are all that is necessary to meet the legal requirements of proof.

If the FAA proves that an applicant made a false statement, even if he or she did so unintentionally, the agency can still revoke the applicant’s medical certificate. If it can prove intentional falsification, the agency can revoke all the applicant’s airman certificates as well as the medical certificate.

US agencies have long investigated pilots’ medical certificate applications, says Kathy Yodice, a former FAA managing attorney who is now in private practice in Potomac, Maryland, and handles cases involving the FAA and VA benefits.

“The FAA wants to know if there are medical issues associated with the disability benefits,” Yodice says. “This is just another way to get that medical information revealed so the FAA can consider it and then determine if the individual is qualified for a medical certificate or a special issuance medical certificate.” (The latter covers 15 medical conditions that would otherwise be disqualifying.) “The FAA legal office gets involved if they can establish that there was either an inaccuracy or an intentional falsification of information provided by the pilot on the medical application form.”

Reigel agrees. “The FAA’s initial priority is determining medical certification,” he says.

There seems good reason to investigate. One veteran we spoke with says he intentionally avoids updating his 8500-8 out of fear of creating problems with the FAA. Another estimated that, while a great number of veteran disability claims resulted from US operations in Afghanistan and Iraq, “75% to 80% of the claims out there are inflated at best and fraudulent at worst.”

Adds Yodice, “The FAA is disturbingly finding that there are many veterans who have not disclosed the medical conditions for which they’re receiving compensation. Some of those conditions and their treatment (or avoidance of it) are pretty concerning from an aviation safety perspective.”

Where There’s Smoke …

Past investigations into pilot records have uncovered behavior that led to revocation of medical certificates or criminal prosecution. In 2003, Yodice says, the inspector generals (IGs) for Transportation and the Social Security Administration launched Operation Safe Pilot, a joint investigation of pilots claiming Social Security disability benefits but not including that information on their medical certificate applications. Joined by the office of the US Attorney for Northern California and the FAA’s Western-Pacific Region Office of Aerospace Medicine, the 18-month probe looked at 40,000 pilots living in northern California. (Yodice was heavily involved in that operation.)

The probe found 3,220 pilots holding current medical certificates and collecting disability benefits, including 48 receiving full-disability payments for conditions that should have disqualified them from holding those certificates. More than 40 pilots were prosecuted. A similar investigation followed on the East Coast.

Spearheaded by the VA IG’s office, the scrutiny around VA benefits has been going on for several years. In August 2018, for example, a San Francisco federal grand jury indicted four airline pilots for making false statements by denying medical conditions for which they received such benefits. One was convicted and two pleaded guilty. The status of the fourth case couldn’t be determined.

Ison opened his aviation law practice with his brothers (one also a lawyer, the other a chiropractor) in 2016. From the start, they’ve been dealing with VA disability issues relative to the FAA. “This isn’t something new to us,” Ison says. “The VA will show up at somebody’s doorstep and start asking about discrepancies between their VA disability benefits and their medical applications. Then it turns into a medical question at the FAA.”

For their clients, Ison says, he and his brothers would work with the FAA to sort out the issue before it became a problem. “It’s something that was fairly common,” he adds, “but wasn’t at a level of catastrophe, which is where it went.”

The scrutiny of medical certificates and disability benefits moved from “common” toward “catastrophe,” Ison says, in mid-2022. Airmen began receiving Letters of Correction or Letters of Investigation from the FAA that referred to an “AAM special project.” AAM is the FAA’s designator for its Office of Aerospace Medicine.

“ ‘Special project’ indicated to me that there was a task force that was maybe going to make this a larger-scale issue,” Ison says. “The next thing you know, it was on a much larger scale than we had ever seen.”

That made the Isons concerned “that pursuit of airmen receiving VA disability benefits will go beyond a few isolated airmen.”

Indeed, lawyers are skeptical of the FAA’s estimate that the probe will affect only around 4,800 pilots. “They do not seem to equate to what we’re seeing in our practice,” Yodice says. “We, alone, have seen at least a dozen revocation actions and a few dozen who have been able to simply correct their applications.

“It’s unclear, and the FAA isn’t telling us, how it’s making the decision in each case to allow the pilot to make the necessary correction and provide medical information or proceed with enforcement action,” Yodice continues.

A practical policy for ensuring that a pilot safely holds a medical certificate (and for protecting the system’s integrity) “and having the FAA share their policy for handling these cases would make for a more just administration in getting these matters cleared up quickly,” Yodice adds.

Another change came earlier this year when airmen began to receive what Ison calls “letters of reconciliation.” Holders of first-class medicals (air transport and airline pilots) had until Jul. 31, 2023, or the expiration of their current certificate to submit a new application and visit their aviation medical examiner (AME) for a new physical exam. Holders of second-class medicals (commercial pilots) must take those steps by Jan. 3, 2024, or the expiration of their current certificate. The same applies to third-class medical holders.

These letters warn airmen that their new applications need to report all VA disability benefits. Ison says failure to do so could lead to enforcement action. “Now, rather than a knee-jerk reaction to prosecution and revocation, they’re giving airmen an opportunity to amend their applications,” Reigel says.

But the AME may be unable to issue a new certificate to an airman under investigation. Reigel and Ison say the application may go to the FAA’s Aerospace Medical Certification Division in Oklahoma City, Oklahoma, for review.

Privacy Concerns Unfounded

Many pilots are troubled by an apparent invasion of privacy in these cases, believing that federal law—specifically, the Health Insurance Portability and Accountability Act (HIPAA)—limits use of their medical information without their authorization.

Privacy was a significant issue in Operation Safe Pilot. In that initiative’s wake, the FAA in 2008 changed Form 8500-8 to provide notice that it will compare data with that of other agencies regarding disability benefits paid to the applicant. Another 2008 change was the addition of Question 18y.

Likewise, VA regulations (38 CFR 1.506) state that the department shall furnish “all records or documents required for official purposes by any” US department or agency. In other words, it is the stated policy of both the FAA and the VA that they share data with other federal agencies and, since 2008, the FAA has notified all applicants for airman medical certificates of that fact.

Quantifying Disability

A complicating factor is confusion among veterans, the FAA, and the VA about the meaning of disability benefits. The FAA stance, at least initially in an investigation, appears to be that any amount of disability payment dictates that the answer to Question 18y be yes.

Some veterans say the VA doesn’t consider someone disabled unless impairment exceeds 30% of physical or mental capacity. That threshold is the trigger for a veteran to be placed on the so-called “disabled roster,” which brings an individual greater VA benefits.

“If you’re 30% or less, you’re not on the disabled roster,” says a veteran who flew military helicopters for 19 years. “They use the disability roster as a litmus test for whether or not you’re considered to have a disability.”

This veteran suffered bulging cervical spine discs and spinal stenosis, a result of years of flying in a vibrating cockpit, often under the weight and counterweight of night-vision goggles. Periodic brachial plexus has caused numbness and tingling in one of his arms and two of his fingers.

“I was only 10%,” he said. “I always checked no [on 18y].”

“There are many different explanations from veterans as to why they answered no to this question,” Yodice says. For instance, a lot of veterans consider VA payments compensation for service to their country. “The individuals helping these veterans when they exit the military are saying, ‘This is something you are entitled to. You served your country. You deserve to be compensated for that.’ ”

Yodice adds that 18y is subject to interpretation. “A lot of veterans don’t consider disability benefits to be the result of any existing medical condition that affects anything they do,” she says. “If the FAA really wanted to know about programs such as workers’ compensation, VA disability programs … put it in the instructions. Give the individual a fighting chance to answer the question yes before jumping to an accusation of intentional falsification and revoking all the certificates they spent a lot of time and money earning.”

Another unfortunate effect of the FAA’s decision to probe veteran pilots’ disability records? “I’ve had a number of clients with a condition they needed to disclose that was not going to be disqualifying,” Reigel says. “For whatever reason, they didn’t check the box. Now, they’re stuck.”

“It is imperative that the FAA and VA use a transparent, fair process to resolve any discrepancies in the disability records of veteran pilots,” says HAI’s Viola. “That is what we owe our veterans—and it is also essential for the vitality of our aviation community.”


If the FAA Requests Information on Your Military Disability Records, HAI Recommends You Do the Following:

  • Reply to the FAA within the timeline indicated, even if your response is to request additional time
  • Allow sufficient time for the time-consuming, painstaking process of correcting any inaccuracies in your military medical records
  • Keep your military medical records and your Veterans Affairs disability award letter in a safe, convenient location so you can easily access those details.

 

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James T. McKenna

James T. McKenna

James T. McKenna has written about aviation since penning a 1978 article on the Wright brothers display at John F. Kennedy International Airport (KJFK) for New York City’s Aviation High School newspaper. An award-winning journalist, he has covered airlines, military aviation, spaceflight, and helicopters for Aviation Week. Twice editor in chief of Rotor & Wing, he has written for the Flight Safety Foundation, The New York Times, USA Today, Vertical, and Vertiflite. He specializes in covering accident investigations and safety issues.