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Welcome to The Veterans Disability Nexus, where we provide unique insights and expertise on medical evidence related to VA-rated disabilities. Leah Bucholz, a US Army Veteran, Physician Assistant, & former Compensation & Pension Examiner shares her knowledge related to Independent Medical Opinions often referred to as “Nexus Letters” in support of your pursuit of VA Disability every Tuesday & Wednesday at 7AM Central.
Take control of your medical evidence related to your benefits and visit https://podcast.prestigeveteranmctx.info/veteran/ for more information and to connect directly with us!
Hey guys, it's Leah B from Prestige Veteran Medical Consulting. I'm a US Army veteran physician assistant and former compensation and pension examiner. Today I have Rebecca Deming from ProVet Legal on and we're gonna discuss a topic that I find extremely interesting and I've been wanting to do this video forever. So I'm so glad that she's on today to do it because it's it's something that I think is so relevant to veterans claims and that's pyramiding. So Rebecca, before we jump in, do you want to I know you've been here several times and most of our viewers probably know you by now, but for those Those of them who don't know you, can you tell them a little bit about yourself?
Rebecca Deming:Sure. I'm the owner of ProVet Legal. It's a law firm based in St. Petersburg, we represent veterans nationwide and even some living overseas and their family members in VA disability claims. And my husband is, was a twenty seven year Navy veteran.
Rebecca Deming:And I got into this area of practice after working with military members for a long period of time when he retired. Love So working with veterans and happy to be on your channel, Leah.
Leah Bucholz:Yeah, and I have never really said this in a video before, but it just came to my mind that I just want to say that I think Rebecca is an amazing attorney and an amazing ethical person. That's why I have her on so much because I work with a lot of, amazing VA attorneys, accredited claims agents, VSOs, and I think they all are wonderful and do so many things for veterans. But, I mean, Rebecca is just top notch when it comes to the way that she her brain works, the way that she shows up for her clients, the way that she is very responsive and and adds that personal touch, I think, is so wonderful. And that's why I just I've enjoyed getting to know her over the years, and and I'm so glad that she's, so willing to provide her insights to you guys. So, hopefully, we can convince her to get her own channel going here soon so you guys can pour into her more often.
Leah Bucholz:So I'm gonna keep nudging her on that.
Rebecca Deming:Leah, you're making me blush.
Leah Bucholz:No. Well, I'm for real. So, before we before, I go too off off topic, can you tell us what pyramiding is? Essentially, what is the definition of pyramiding in the context of VA disability? Sure.
Leah Bucholz:Pyramiding is
Rebecca Deming:basically VA's way of saying that you can't double dip and get paid for the same symptom under a different diagnostic code. So if, you know, if you've got three different diagnoses That all impact your ability to breathe and they're all you've got COPD, asbestosis, sleep apnea and asthma, they're all impacting your respiratory function. You're not going to get three or four different ratings for that. VA is going to say, okay, which one's the highest one and we're going to rate that one or they'll kind of combine. I say, combined with technically not the right word, but they will loop them under one code and give you the highest rating allowable under law for the one of them.
Leah Bucholz:Yeah, another one that I see a lot is just like mental health conditions. So like depression and anxiety. There's a lot of overlap in those symptoms. You may have anxiety as a symptom of some of your depression also. They may be distinct diagnoses in some cases, but sometimes those things are subsumed in one another.
Leah Bucholz:But again, we can Yeah,
Rebecca Deming:for mental health it's always going to be rated under the mental health diagnostic code. And we can get into how TBI can sometimes be different. But for mental health it's always rated. So even if you have even if you're like, I've got two very distinct, I've got my anxiety and when I've got my anxiety, it makes me not sleep and I get nervous in social settings and act out and I've got my depression, which makes me sleep all day and two separate conditions that have separate onsets and separate, you know, whatever face still going to say, nope, those are pyramid. Those affect your mental health and your ability to function in your social and occupational impairment.
Rebecca Deming:And so because of the way that they rate them, you're not going to get two separate disability ratings for mental health.
Leah Bucholz:Sure. So how does VA determine whether a person's conditions are subject to pyramiding?
Rebecca Deming:So they, you know, the kind of overarching answer is they're looking at whether the same symptoms are in the rating code or appear in two different rating codes that. The veteran would otherwise qualify for And then they're going to give you the higher one of the two. They're not going to give you both. The more nuanced answer is there are very specific guidelines in VA's rating schedule that will say, you know, for this one, you can't rate them both, choose the one that most accurately or provides the higher rating for them. And so there are some where I always get sort of surprised with the knee, You can get one rating for limitation of flexion, one rating for limitation of extension, and one rating for instability.
Rebecca Deming:And there's some nuance and that's just because that's the way the code is written. So knowing those nuances can be really helpful to maximizing the rating for someone and also not wasting your time if you're, you know, like you said, if you've got depression and anxiety, like they're two different things and you're spinning your wheels trying to get a separate rating and VA is like, we are never going to give you a separate rating for those two things because they all get rated under the mental health code.
Leah Bucholz:Yeah, or they might even say, hey, guess what? You opened this claim for anxiety but you're rated for depression and now we think that your depression has improved. And it might not have, right? But just weird things can happen. Anything can happen.
Leah Bucholz:You got a new headache on your hands, right? Yeah. So can you explain the difference between separate and overlapping disabilities in terms of pyramiding?
Rebecca Deming:Sure, there can definitely be overlapping disabilities and there's things that are related. So you can have, let's say you have diabetes and diabetes causes, you get one rating for actually having diabetes and you get one rating because you've got neurogenic bowel or neurogenic bladder and then one rating for the peripheral neuropathy, and it's all really related to your diabetes, but it's affecting different body parts and different systems. Then you're going to get those separate ratings for that. But with pyramiding VA is looking at, is it impacting one body part, one system, one function of that one system? So, it is sort of nuance, like on your head, could have a scar on your face, you could have headaches, you could have dry eye, you could have rhinitis and you could have a mouth issue, know, that's all in your head, but those are going be separate issues because of the way that VA says no, like one's impacting your vision and that's a separate function.
Rebecca Deming:One's impacting your nose and respiration. One's impacting your ability to show up to work, because you're getting headaches that are kind of knocking you out too often. So VA looks at really not just they look at both the body part, but also what function is impaired. And whether they're separate functions that are impaired. So they're looking at, can I give you a separate rating for this impairment and this impairment and this impairment?
Rebecca Deming:Or is it really all all these three things are just impacting your ability to move your shoulder? And so, since you can't move your shoulder, you get one rating for your shoulder, whether it's caused by your clavicle or your I'm not even sure, Leah, what other pieces in your Yeah. Yeah.
Leah Bucholz:So there's your rotator another one, headaches. I'm getting headaches. Well, I have tension headaches and I have migraine headaches. And then I also have just generalized headaches. Right?
Leah Bucholz:They're all headaches. Right? Or with the shoulder, it's impacting your ability to move. So, like, I had a labral tear in my shoulder. I had a rotator cuff tear.
Leah Bucholz:I had, AC joint issue. I had, like, five bajillion different things wrong with the same shoulder, but I'm not gonna get I'm not actually even rated for my shoulder because it was unrelated to service. But if I was, and if it was, then, you know, it's gonna be one rating.
Rebecca Deming:Right. Right?
Leah Bucholz:So what are what are some of the potential consequences for a veteran if the VA finds that their disabilities are pyramided?
Rebecca Deming:So you're only gonna get that one rating whereas you're applying for separate ratings. And so with VA, it's sort of like a Tetris game or something, and you're trying to fit all these pieces together to get the highest possible rating applying VA math, which we did a separate video on VA math. And so some, you know, if you were if you were able to get four ratings for that shoulder, like, that might. Move you from 70% to an 80 or 90% or something, depending on where what else you had. Connected.
Rebecca Deming:But because you only get that one rating, you're going to be stuck with that one rating. So understanding that's just, I mean, I think it's, there are certain things that you can, can do sometimes to differentiate symptoms and be like, listen, I qualify for the 70% under this rating code without the symptoms that would qualify under that other rating code. So that really should get two separate ratings because they're, you know, you can distinguish these things and they impact me in two distinct ways. Then VA will separate them. Do sometimes see them combine things that shouldn't be combined.
Rebecca Deming:So, you know, sometimes we'll have migraines with tinnitus or something, and they give you one rating for migraines with tinnitus. Under the current rating schedule, like. You know, and that is potentially subject to change here soon. The tinnitus or tinnitus should get a 10% rating if it's service connected. And your migraine should be rated based on how frequently you're having headaches.
Rebecca Deming:And so, even if they were both caused by. The TBI that you suffered when you got hit in the head and whatever they're two separate things that should be rated separately. So sometimes when you see those things rated together, you can separate them out and get that extra. 10%, which may or may not impact your combined rating. That's why understanding the VA math is really important to know when it's worth putting in that extra fight.
Leah Bucholz:Yeah, I have a friend that's another VA attorney. Have, and he was just mentioning to me the other day, he's working on a case for someone that's got neck pain and they tied in cervicogenic headaches, right? So those, you know, into the same And so those are just, yes, it is caused by his cervical spine condition, but it is a separate like, as you mentioned earlier about the diabetes, it can affect multiple body systems. So you've got headaches caused by the neck. That's a distinct separate condition.
Leah Bucholz:Right. That legal type he's gonna have to make, I guess. So, you know, along the same lines, how can what are some things that a veteran can do to present their case to avoid the pitfalls of permitting?
Rebecca Deming:So for some of them, you're just you're just stuck. If the code's written that way, you know, for the longest time, and I think this has been alleviated recently, you know, you couldn't get separate ratings for gastroesophageal reflux disorder and IBS because they both have that symptom of epigastric distress or like the bloating and pain in the stomach. And you know, for me, one is exit and one is entry. I think of your esophagus and your bowels as two separate body parts, but VA because the symptoms were overlapping. If that's the case, you can argue all day long, but if the code is written that you can't have separate ratings for them, then you're stuck.
Rebecca Deming:But on some of the more nuanced ones, one of the ones that we see a lot is TBI and PTSD, because if you got blown up and that shook up your head, it might also be the cause of some post traumatic stress disorder. They could have the same origin, but there's some overlapping symptoms. So with TBIs, it's really important to kind of look at most of the time. I think you don't and we could do a whole separate. We could probably do multiple a whole series on TBIs.
Rebecca Deming:Most of the time you're going to be better rated if you get instead of having a rating for TBI, you'd be better rated for the individual symptoms underneath. But sometimes you can get a separate rating for PTSD because it's the emotional, the cognitive behavioral changes that are happening from PTSD, but your TBI is really impacting balance and memory and cognitive function, which is separate from the PTSD. Especially if they're separate injuries and so you can kind of say it's easier for the doctors. And this is really something there's medical professionals that will get into it and do some testing and evaluations to say, no, no, these symptoms here are clearly PTSD and on their own they meet the criteria for a fifty or seventy percent rating. And then these symptoms are very clearly tied to the head injury and on their own they meet the criteria for thirty, forty, seventy percent rating, whatever it is.
Rebecca Deming:Then we can kind of argue that VA should separate them out. I think something that's really hard for veterans to do on their own. It's hard for us as legal professionals to do working closely with medical professionals to separate some of those out. So, if you find yourself in a situation where, and I hate to say, hey, it's complicated, talk to a lawyer, but this is one area that I think it's just going be really, really challenging if you think that VA incorrectly combined or pyramided two ratings and you want to try to separate them out, you probably want to get an expert to work with you, or a couple experts, you know, the legal professional and a medical professional to help separate that out.
Leah Bucholz:So are there some specific conditions that come to your mind like the most common ones that are prone to having this happen?
Rebecca Deming:Gastrointestinal ones are ones that, like I said, the TBI and PTSD or mental health and TBI often get permitted. Respiratory conditions very frequently get permitted. So asthma, and this one kind of boggles my mind, but sleep apnea would get pyramid with asthma or COPD or asbestosis. So one is, you you have know, sleep disturbed breathing and you're waking up gasping for air at night and the other is you have reduced lung capacity during the day because of these other impairments. In my opinion, they're kind of separate, but VA has determined that they overlap enough because they both impact respiratory and so you're only going to get whichever one is higher.
Rebecca Deming:So if you qualify for a thirty percent for asthma and a fifty percent for sleep apnea, you're just gonna get that one hundred fifty percent for the sleep apnea and they'd probably write it down as sleep apnea and asthma.
Leah Bucholz:Can you share some of your insight on some examples of some successful appeals related to pyramiding cases?
Rebecca Deming:Sure, I mean I think it really comes back to having the right medical experts. I mean sometimes there's cases where VA just very clearly misread the regulations and they're peer rating stuff that, like the tinnitus and the migraines. There is nothing in the migraine rating code that mentions ringing in the ears so the symptoms of. Tinnitus or tinnitus are nowhere in the rating code for migraine headaches. So it's just not appropriate to say that it's overlapping symptoms.
Rebecca Deming:So that one, we probably wouldn't need a legal expert to separate them out. We would just go into the VA schedule for you to disabilities, pull, and I'd probably do a higher level review initially. Might need to end up going to the board and say, hey, because they don't overlap, here's the rules and regulations on pyramiding. These need to be separated out and you need a separate evaluation. I'd also be looking at the C and P exam to see what symptoms were shown in there.
Leah Bucholz:That example is one that would be pretty straightforward if you did a higher level review and you were like, come on, like, we know that these two aren't combined, but I guess common sense doesn't always prevail. I would assume that another rater would look at that and say, oh yeah, clearly this was a mistake and we need to separate these.
Rebecca Deming:Right. Yeah, and so we have seen a few of those. Luckily, I think that those are rare. I mean, there's not a whole lot of times where they're reading the. Under one code when it's really multiple conditions that impact different body systems or functions.
Rebecca Deming:Think, yeah, the simple ones are pretty rare, but if you see those where it's like, wait a minute, they rated you know, my balance and my headaches is one condition or something. That one actually probably wouldn't be that simple because you'd want to be looking at, do you have vestibular migraines and are you only losing balance at the time when you're having a migraine or is one like, hey, I'm constantly off balance. And the other one is, I have migraines that knock me out for a few hours at a time.
Leah Bucholz:Sure. So aside from accredited VA attorneys, what are some other resources of support or support that veterans can access when they're dealing with this?
Rebecca Deming:I mean, you wanna get froggy, I like to pull up the VA schedule of rated disabilities and go right to the source. And my favorite resource for that is the Cornell Law website because of the way that they're written. I think it's not paragraphs and paragraphs of legalese. It kind of has the hyperlinks or the condition, the code, and then it's written in a way that is pretty easy to find it and break it down. So you can look at and be like, oh, okay, there is a, I mean, if you want to read through that, you might be able to find the answer on your own that.
Rebecca Deming:Yeah, is never gonna give you separate ratings for two different mental health diagnoses or something. Or you might look at it and say, Hey, ringing the ears is not a symptom listed under the rating code for migraines, so why did they combine those and not give me two separate ratings?
Leah Bucholz:So do you feel like there's a lot of misconceptions that you hear regularly from veterans about pyramiding that you have to dispel?
Rebecca Deming:I think the biggest one is that people just think that every diagnosis that they have should be a separate rating and not understanding that VA is really looking. I mean, I think in general, if you step back, VA is looking at, at least in theory, they're looking at you as the whole person. And so how do these different disabilities impact you? So if you have one thing on your right arm and one thing on your left arm and one thing on your bowels and one thing on your lungs, that's going to impact you differently. If you have like four different things on your lungs, well, okay, we're just looking at how those work together.
Rebecca Deming:You might get a higher rating because of the way that all these things are impacting your respiratory function, but you're only going to get the one rating for it. I think people just assume that because they have multiple diagnoses, they're going to get a separate rating for every diagnosis that they have.
Leah Bucholz:How often do you actually see that VA incorrectly pyramids things? I know we've talked a lot about like examples of that, but how often do you think this happens?
Rebecca Deming:I mean, I think it's frequent enough that it's worth having this this episode and and talking about it, but I don't think it's, like, all the time. I you know, I I'd say it's probably less than 5% that they're incorrectly permitting stuff. You know, like one in 20 where it should be separated and they just sort of were like, oh, yeah, it's, you know, all from the same injury and therefore it's all one rating. You're like, no, that's not what the regulations say. That's not what the medical evidence shows.
Rebecca Deming:They're really they should get two separate ratings. If I had a number on it, I'd say one in twenty.
Leah Bucholz:One in twenty of pyramiding cases
Rebecca Deming:are that are inappropriately pyramided. Yeah. Okay.
Leah Bucholz:That's I mean, I I feel like that's a that's a good enough it's not like you said, not that you see it every day, but it's frequent enough that it's annoying and people have to deal with it semi regularly.
Rebecca Deming:Yeah. I mean, I think that kind of brings up a broader issue, not to go down a whole rabbit hole of the VA's rating scheme in general is fairly complex. I mean, you can access the schedule for disabilities online and you can read through it. But the nuances of how to separate stuff out or pyramid it or not pyramid it or when to pyramid it and how to, you know, if you only claim diabetes, but then the evidence shows that you've got these other tertiary conditions that are caused by the diabetes that VA should there's just there's a lot of nuance and a lot of obligations that's on VA, and there's humans at different levels of government employee that are applying these complex regulations. So there's a lot of errors.
Rebecca Deming:I think sometimes people will get a rating decision and they'll be like, but why did VA do this? And it's like, you know, it's like asking why you're this is going to sound insulting, but, you know, like asking why your two year old is tantruming. You know, they because it's, you know, because they're two years old, because because VA is a big bureaucracy, they're going to make mistakes. Like, I wouldn't always ascribe a rationale to it or think that you have to have a bigger fight than you do. I mean, sometimes the stuff that we need to fight does require us to get a medical expert that's going to do additional testing and really distinguish these two separate conditions and how they impact the veteran in very distinct ways.
Rebecca Deming:But sometimes it's just simple VA error and
Leah Bucholz:Yeah, unfortunately there's, like, human process there. Right? So there's a human process, and there's human bias. There's human mistake. There's human whatever.
Leah Bucholz:Right? So like any other, you know, major bureaucracy organization, whatever, there's gonna be, unfortunately, things that have to be fixed or relooked at, etcetera.
Rebecca Deming:Yeah. And if if it's a really simple, you know, these two things should not be permitted and you took the time to look at the code and you feel comfortable filing a higher level review on your own. I know we usually talk about like, hey, you know, if you're getting into appeals, it's worth talking to an accredited claims agent or an accredited attorney. But sometimes, you know, people want to do stuff on their own and they've done the research and they just feel really confident. You can write, you you do want to write as much as possible.
Rebecca Deming:You probably would want to request an informal conference with the Decision Review Officer. But if it's really just as simple as like VA, know, this rating, I don't want say VA didn't know what they were doing, this rating officer who wrote your decision didn't know what they were doing. And you can kind of pinpoint that for the Decision Review Officer, you might be able to get it overturned in about four months is what we're seeing higher level reviews take currently as of April 2025 when we're filming. Their timelines are constantly shifting, but yeah, you might be able to overturn it on your own by just kind of pointing it out and following that higher level review.
Leah Bucholz:So I guess in your experience, how has the interpretation of period of peer meeting evolved over time? And then what trends do you think may, you know, what is it going to look like in the future? I
Rebecca Deming:think that some of the more complex stuff might be ripe to take on appeal all the way up to the courts and federal circuit if we need to, because VA has regular So, you know, you've got the statutes and the regulations that apply the statutes, and then you've got the way that the agency at the lower level applies those regulations. And so sometimes I think there's VA puts, the agency puts overly restrictive interpretations of the rules on there. So I think there are some areas where, you know, could really push back as as legal advocates and try to separate out the. Some of the things that really are affecting veterans in different ways. I also think that some of the testing for TBI has gotten a lot more advanced over the past few years, over the past ten years.
Rebecca Deming:In the past it would be like, Oh, we can only really determine what the TBI did when we do a brain autopsy after you pass. Now I think they're able to do kind of more imaging and more testing and kind of separate out like, okay, well this is really a PTSD symptom and this is really a TBI symptom. And then, yeah, it's like logic puzzles, like, you know, you've got to look at the rating code and especially something as complex as a rating code has multiple different. Places you're kind of saying, you're looking at their medical records and saying they have these symptoms documented that aligns with the, you know, these sections of the rating code. So we're pulling these pieces together and kind of diagramming it.
Rebecca Deming:And if you love logic puzzles, then this is a good area to get into and work on for yourself. If these things make your head spin. Don't drive yourself crazy and hire someone to come in and do the work for you and kind of pull it apart and figure out where what additional evidence you need.
Leah Bucholz:Yeah, I'm interested to see what happens and I'm sure we'll do some videos on this here over the next year about what's going to happen with tinnitus and how that's gonna get permitted and lumped in with other conditions. And we won't go down that rabbit hole, but that's gonna be one that I think has a lot of talk here coming up pretty soon. Then also the sleep apnea and asthma changes, which, know, again, we can do some videos when those things come to fruition, think, especially the tinnitus is gonna be a big one for us to discuss.
Rebecca Deming:Yeah, I mean, think sometimes these regulations come into effect and the changes get made and it makes it easier for us to get certain things separated out. And then some of the regulations that are in the pipeline are going to make it a lot more challenging for veterans to get adequately rated. And so people that were easily getting 90 or 100 before, if they apply now, or if they apply after these new regulations come into effect, are going to not get those ratings or have to kind of think about other body systems and other claims that they might have in order to cover the same ground.
Leah Bucholz:Right. Well, that's pretty much I had, all those the questions I had. Is there anything that you can think of that we missed that you think is important to touch on for pyramiding? Well, think
Rebecca Deming:it's just a very fact specific situation, on whether it's something that's simple misapplication of the regulation or if it's, in your case, you've got very distinct symptoms and talking to a professional and kind of working through those things with someone who's had more experience in pulling them apart is going to be helpful for most people. And then, yeah, if you haven't seen the video on VA math, I think this video fits really well into that video in terms of understanding. Cause there's times where you might say, I really want to pick apart the headaches from the tinnitus and once it's only going to move you from 87% to eighty nine nine percent, either way it's rounded up to ninety percent. And so you're picking this big fight and you're not going to get any back pay out of it anyway or any additional monthly compensation. So if you haven't seen the video on VA Math or the two videos on VA Math, go back and watch those.
Leah Bucholz:Yeah, definitely check those out. And if you would like to get in touch with Rebecca at Pro Vet Legal, I'm gonna put a link to her website in the description of this video. Or you can just go over to Pro Vet Legal, to her website, it's provetlegal.com, right? Yes. And you can certainly, know, have a consultation with her and see if maybe you guys would be a good fit for one another.
Leah Bucholz:Also, if you're looking for just legal assistance in general, your local VSO is always an option that you can, especially for new claims, you can always, reach out to those guys and and they may be able to assist you as well. So as always, thank you for hanging out with us today, Rebecca. And everybody please drop some comments and like and subscribe so that you can get some more information. And let us know if there's any other topics that you guys would like to hear us talk about in the future.
Rebecca Deming:Awesome. Thank you for having me, Leah. Thank you guys for watching. Alright. See you guys later.