[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR3.352]

[Page 258-259]
 
            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
 
                CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
 
PART 3--ADJUDICATION--Table of Contents
 
     Subpart A--Pension, Compensation, and Dependency and Indemnity 
                              Compensation
 
Sec. 3.352  Criteria for determining need for aid and attendance and ``permanently bedridden.''

    (a) Basic criteria for regular aid and attendance and permanently 
bedridden. The following will be accorded consideration in determining 
the need for regular aid and attendance (Sec. 3.351(c)(3): inability of 
claimant to dress or undress himself (herself), or to keep himself 
(herself) ordinarily clean and presentable; frequent need of adjustment 
of any special prosthetic or orthopedic appliances which by reason of 
the particular disability cannot be done without aid (this will not 
include the adjustment of appliances which normal persons would be 
unable to adjust without aid, such as supports, belts, lacing at the 
back, etc.); inability of claimant to feed himself (herself) through 
loss of coordination of upper extremities or through extreme weakness; 
inability to attend to the wants of nature; or incapacity, physical or 
mental, which requires care or assistance on a regular basis to protect 
the claimant from hazards or dangers incident to his or her daily 
environment. ``Bedridden'' will be a proper basis for the determination. 
For the purpose of this paragraph ``bedridden'' will be that condition 
which, through its essential character, actually requires that the 
claimant remain in bed. The fact that claimant has voluntarily taken to 
bed or that a physician has prescribed rest in bed for the greater or 
lesser part of the day to promote convalescence or cure will not 
suffice. It is not required that all of the disabling conditions 
enumerated in this paragraph be found to exist before a favorable rating 
may be made. The particular personal functions which the veteran is 
unable to perform should be considered in connection with his or her 
condition as a whole. It is only necessary that the evidence establish 
that the veteran is so helpless as to need regular aid and attendance, 
not that there be a constant need. Determinations that the veteran is so 
helpless, as to be in need of regular aid and attendance will not be 
based solely upon an opinion that the claimant's condition is such as 
would require him or her to be in bed. They must be based on the actual 
requirement of personal assistance from others.
    (b) Basic criteria for the higher level aid and attendance 
allowance. (1) A veteran is entitled to the higher level aid and 
attendance allowance authorized by Sec. 3.350(h) in lieu of the regular 
aid and attendance allowance when all of the following conditions are 
met:
    (i) The veteran is entitled to the compensation authorized under 38 
U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 
U.S.C. 1114(p).
    (ii) The veteran meets the requirements for entitlement to the 
regular aid and attendance allowance in paragraph (a) of this section.
    (iii) The veteran needs a ``higher level of care'' (as defined in 
paragraph (b)(2) of this section) than is required to establish 
entitlement to the regular aid and attendance allowance, and in

[[Page 259]]

the absence of the provision of such higher level of care the veteran 
would require hospitalization, nursing home care, or other residential 
institutional care.
    (2) Need for a higher level of care shall be considered to be need 
for personal health-care services provided on a daily basis in the 
veteran's home by a person who is licensed to provide such services or 
who provides such services under the regular supervision of a licensed 
health-care professional. Personal health-care services include (but are 
not limited to) such services as physical therapy, administration of 
injections, placement of indwelling catheters, and the changing of 
sterile dressings, or like functions which require professional health-
care training or the regular supervision of a trained health-care 
professional to perform. A licensed health-care professional includes 
(but is not limited to) a doctor of medicine or osteopathy, a registered 
nurse, a licensed practical nurse, or a physical therapist licensed to 
practice by a State or political subdivision thereof.
    (3) The term ``under the regular supervision of a licensed health-
care professional'', as used in paragraph (b)(2) of this section, means 
that an unlicensed person performing personal health-care services is 
following a regimen of personal health-care services prescribed by a 
health-care professional, and that the health-care professional consults 
with the unlicensed person providing the health-care services at least 
once each month to monitor the prescribed regimen. The consultation need 
not be in person; a telephone call will suffice.
    (4) A person performing personal health-care services who is a 
relative or other member of the veteran's household is not exempted from 
the requirement that he or she be a licensed health-care professional or 
be providing such care under the regular supervision of a licensed 
health-care professional.
    (5) The provisions of paragraph (b) of this section are to be 
strictly construed. The higher level aid-and-attendance allowance is to 
be granted only when the veteran's need is clearly established and the 
amount of services required by the veteran on a daily basis is 
substantial.


(Authority: 38 U.S.C. 501, 1114(r)(2))

    (c) Attendance by relative. The performance of the necessary aid and 
attendance service by a relative of the beneficiary or other member of 
his or her household will not prevent the granting of the additional 
allowance.

[41 FR 29680, July 19, 1976, as amended at 44 FR 22720, Apr. 17, 1979; 
60 FR 27409, May 24, 1995]