Citation Nr: 21009665 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-52 238 DATE: February 23, 2021 ORDER Entitlement to attorney fees from past due benefits awarded in a January 2018 rating decision (that granted service connection for foreign object in hilar area with associated hemoptysis at 10 percent effective November 16, 2010) is dismissed. FINDING OF FACT In May 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through an attorney of the same law firm, H.S. (initials used for privacy), that a withdrawal of this appeal is requested. The appellant did not respond to August 2020 and November 2020 Board letters seeking confirmation of his desire to withdraw the appeal for attorney fees. CONCLUSION OF LAW The criteria for dismissal of entitlement to attorney fees from past due benefits awarded from a January 2018 rating decision have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant represented the Veteran in an appeal for service connection for a chest condition (foreign object in hilar area with associated hemoptysis), which was ultimately granted in a January 2018 rating decision at 10 percent effective November 16, 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 fee decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied direct payment of fees on the basis that the award of past-due benefits did not result in a cash payment ot the appellant. Entitlement to attorney fees from past due benefits awarded from a January 2018 rating decision (that granted service connection for foreign object in hilar area at 10 percent effective November 16, 2010) The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. Id. A power of attorney, executed on either VA Form 21-22, “Appointment of Veterans Service Organization as Claimant’s Representative,” or VA Form 21-22a, “Appointment of Attorney or Agent as Claimant’s Representative,” is required to represent a claimant before VA and to authorize VA’s disclosure of information to any person or organization representing a claimant before the Department. 38 C.F.R. § 14.631(a). Only one organization, representative, agent, or attorney will be recognized at one time in the prosecution of a particular claim. Generally, all transactions concerning the claim will be conducted exclusively with the recognized organization, representative, agent, or attorney of record until notice of a change, if any, is received by the appropriate office of VA. 38 C.F.R. § 14.631(e)(1). The receipt of a new power of attorney executed by the claimant and the individual providing representation shall constitute a revocation of an exciting power of attorney. 38 C.F.R. § 14.631(f)(1). Here, the Board finds that the appellant has withdrawn his appeal. In this case, the appellant filed a timely Notice of Disagreement (NOD) with the February 2018 fee decision, asserting the Veteran was not service connected for any other disabilities at the time of the grant of service connection for foreign object in the hilar area. Therefore, the 10 percent grant must result in a cash payment and therefore, attorney fees, to which he is owed. See March 2018 NOD. The AOJ issued a statement of the case (SOC) in October 2018. In response, the appellant filed a substantive appeal in October 2018, where he specifically declined having a Board hearing. See Form 9 (October 2018). Yet, an attorney of the same law firm, H.S., stated she desired to withdraw the appeal of entitlement to attorney fees at a May 2019 Board hearing. See Hearing Transcript (May 2019). In a September 2019 Board decision, it was noted that the attorney’s fees appeal was not certified to the Board and the Board recommended the appellant contact VA in writing to withdraw the claim. The same month, the Veteran and H.S. executed an adequate power of attorney, naming H.S. his representative. See Power of Attorney 21-22 (September 2019). The appeal for attorney fees was certified to the Board for appellate review in May 2020. See Form 8 (May 2020). In August 2020, the Board issued a letter, seeking confirmation if the appellant wished to withdraw the appeal for entitlement to attorney’s fees. The Board notified the appellant that his request to withdraw must be in writing and signed by him; if he did not respond within 30 days, the Board would assume he wished to withdraw the appeal and the appeal would be dismissed. See BVA Letter (August 2020). In September 2020, H.S. responded to the August 2020 letter, stating the only issue she withdrew at the hearing was service connection for residuals of a head injury. See Third Party Correspondence (September 2020). In November 2020, the Board issued a second letter, informing the appellant that H.S. did not have authority to speak on his behalf because he was the contested claimant, and there was not a power of attorney of record, naming her his representative, permitting her to act on his behalf on the pending appeal. The Board once again informed the appellant that if he did not respond to the letter within 30 days, the Board would assume he wished to withdraw the appeal and the case would be dismissed. See BVA Letter (November 2020). The appellant did not respond within 30 days of the November 2020 letter and has not responded to date. With no response, the Board finds that the appellant wishes to withdraw the appeal for attorney fees. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of entitlement to attorney fees from past due benefits awarded in a January 2018 rating decision and it is dismissed. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Pendleton, Natasha The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.