Staged Ratings of Disability / 5 Year Rule

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Quick question about staging and the five year rule.

I recently received a decision from the VA stating the following:

Evaluation of migraine headaches, which is currently 0 percent disabling, is increased to 30% effective May 1, 2008.  A non-compensable evaluation is assigned from October 17,2013.

Reasons and Basis:

Evaluation of migraine headaches, which is currently 0 % disabling, is increased to 30% effective May 1, 2008.  A non-compensable evaluation is assigned from Oct 17, 2013 the date medical evidence established sustained improvement.

A 30% evaluation is assigned from May 1, 2008, the day following your discharge from service since you have maintained a continuous claim and appeal since that time.

We have assigned a 30% evaluation from your migraine headaches based on: Characteristic prostrating attacks occurring on an average once a month over the last several months.

You VA examination of Dec 2, 2008 relayed that you had prostrating episodes once per month. (Warrants a 30% evaluation)

VA examination March 31, 2010 found no incapacitation/prostrating episodes of headaches.

VA examination Oct 17, 2013 found no incapacitation/prostrating episodes of headaches and established sustained improvement.

VA examination May 24, 2016 found you to have prostrating attacks less frequently than one in two months.

Treatment records from VAMC show no treatment for headaches.

Treatment records from WHA show that you were prescribed Celex and Imitrex for headaches.  These records show migraine headaches, not intractable without staus migrainosus stable and medications for migraine prophylaxis work well.

Your NOD indicates that you had headaches June 8, 2017, June 9 2017 in which you treated with Imitrex and had to lay down and on June 14, 2017 you took medication at work.  You may submit evidence of missed work due to migraines or additional treatment records for consideration or you may file a claim for increase if you feel your condition worsened since you last examination.

The Court of Appeals for Veterans Claims noted in Fenderson v. West, 12 Vet. App. 119, 126, (1999) that the evidence pertaining to an original evaluation might require the issuance of separate, or "staged" ratings of the disability based on the facts shown to exist during separate periods of time.  This provision has been applied in your case and a staged rating has been done.

 

Examiner Notes:

Oct 2013 DBQ - Does the Veteran have characteristic prostrating attacks of migraine headache pain? Yes, less than once every two months. 

May 2016 DBQ - Does the Veteran have characteristic prostrating attacks of migraine headache pain? No Medical History: "The current symptoms include migraine headaches 2-3 times per week, but some weeks are better than others." "The pain is accompanied by nausea (no vomiting), photphobia and sonophobia, and will push through the pain at work, as will take Imitrex or aleve at work.  However, if at home he will go to sleep in a dark, quiet room, and usually awakens feeling better".

Additional notes from NOD:  In addition, I am providing recent entries into my headache log:

6/8/17 - (2) doses of Imitrex and had to lay down to get the headache to go away

6/9/17 - Treated with Imitrex and had to lay down to get the headache to go away.

6/14/17 - Treated with Imitrex at work.

5 year rule: If the rating has been in effect for 5 years, it cannot be reduced unless your condition has improved on a sustained basis (The VA must have documentation supporting this is a permanent improvement).

 

If I am reading the five year rule correctly, VA must have documentation of permanent improvement to reduce a rating that has been in place for more than five years.  Is that correct?  With the rating decision, the 30% disability was in place for more than 5 years.  Even though I had a period where the headaches were better, it has not improved on a permanent basis based on examiner notes and headache log entries. 

Recommendations on NOD?