NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MOLLIE SCOTT-BRANCH,

Claimant-Appellant

v.

PETER O’ROURKE, ACTING SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2017-2125

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 16-3366, Judge Margaret C. 

Bartley.

______________________ 

Decided: June 21, 2018

______________________ 

 MOLLIE SCOTT-BRANCH, Madison, TN, pro se.

 REBECCA SARAH KRUSER, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent-appellee. Also 

represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,

JR., CLAUDIA BURKE; Y. KEN LEE, AMANDA BLACKMON, 

Office of General Counsel, United States Department of 

Veterans Affairs, Washington, DC.
2 SCOTT-BRANCH v. O’ROURKE

______________________ 

Before NEWMAN, DYK, and TARANTO, Circuit Judges.

PER CURIAM. 

Mollie Scott-Branch appeals the Order of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”), dismissing her appeal as untimely filed.1 The 

court held that the extraordinary circumstances needed 

for equitable tolling of the filing deadline had not been 

shown, and dismissed the appeal. The dismissal is affirmed.

DISCUSSION

Ms. Scott-Branch is the daughter of John R. Scott, 

who served on active military duty from March 1941 until 

June 1946, and died in February 1973. Ms. Scott-Branch 

was born in 1952. In October 2010, Appx41, she filed a 

claim for dependency and indemnity compensation under 

38 U.S.C. § 1310(a):

When any veteran dies after December 31, 1956, 

from a service-connected or compensable disability, the Secretary shall pay dependency and indemnity compensation to such veteran’s surviving 

spouse, children, and parents.

38 C.F.R. § 3.57 defines “child” as a person under the age 

of 18 years, or who became permanently incapable of 

support before the age of 18 years, or is at an educational 

institution and under the age of 23 years. 38 C.F.R. § 

3.57(a)(3) states that “the term child also includes a 

person who became permanently incapable of self-support 

before reaching the age of 18 years.” 

1 Scott-Branch v. Shulkin, No. 16-3366, 2017 WL 

1001121 (Vet. App. Mar. 15. 2017) (“Vet. Ct. Op.”). 

 
SCOTT-BRANCH v. O’ROURKE 3

The Board of Veterans Appeals (BVA) held that Ms. 

Scott-Branch “exceeded the maximum allowable age for 

recognition as a child of a Veteran, regardless of her 

marital status or if she was pursuing a course of instruction,” and that she was not entitled to benefits as a “helpless child” because she had not shown that she was 

“permanently incapable of self-support by reason of either 

mental or physical defect” prior to age 18. In re Branch, 

No. 11-29 388, at 4 (BVA Mar. 15, 2016), Appx43. An 

attachment to the BVA decision stated “you have 120 

days from the date this decision was mailed to you (as 

shown on the first page of this decision) to file a Notice of 

Appeal with the Court.” Appx44 (boldface in original). 

Ms. Scott-Branch filed the Notice of Appeal on September 

28, 2016, 197 days after the mailing date of the BVA’s 

decision, which was sent on March 15, 2016. 

The Secretary of Veterans Affairs moved to dismiss 

the appeal as untimely filed. The Veterans Court issued 

an Order to Show Cause on the question of timeliness. 

Ms. Scott-Branch responded that her late filing was due 

to a “nervous disorder which causes her to not function at 

normal or full capacity” as well as being “very ill with 

diverticulitis and colitis during the 120-day period.” 

Appx12. She stated that “[a] reasonably diligent person 

would likewise not have been able to manage the filing of 

the appeal under those extraordinary circumstances.” 

Appx13. Ms. Scott-Branch provided no medical records or 

other supporting evidence.

On February 1, 2017, the Veterans Court issued a 

second Order to Show Cause, requesting evidence related 

to Ms. Scott-Branch’s statements that she was incapable 

of timely filing. Ms. Scott-Branch then submitted letters 

from family members, her minister, a doctor, and medical 

records. Appx19–39.

The Veterans Court reviewed the submissions, and 

found that “the medical records that Ms. Scott-Branch 
4 SCOTT-BRANCH v. O’ROURKE

submitted do not reflect treatment for a nervous condition, diverticulitis, or ulcerative colitis during the judicial 

appeal period, and that the only medical records from that 

period pertained to a right upper extremity condition that 

she has not asserted as preventing her from timely filing 

an NOA.” Vet. Ct. Op. at 3. The Veterans Court held 

that the basis for equitable tolling had not been established. Id.

In order for late filing in the Veterans Court to be equitably tolled, “a petitioner must show (1) that he has 

been pursuing his rights diligently, and (2) that 

some extraordinary circumstance stood in his way and 

prevented timely filing.” Toomer v. McDonald, 783 F.3d 

1229, 1237 (Fed. Cir. 2015) (emphasis in original). The 

Veterans Court found that Ms. Scott-Branch had not 

established an extraordinary circumstance. We discern 

no error in the law applied by the Veterans Court, and no 

constitutional violation in the court’s procedures. Absent 

error of law or constitutional violation, this court is precluded from reviewing determinations of equitable tolling. 

Dixon v. Shinseki, 741 F.3d 1367, 1377-78 (Fed. Cir. 

2014).

The ruling of the Veterans Court is affirmed.

AFFIRMED

COSTS

No costs.